Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by the Legal Aid Practitioners Group (LAPG) (LA 81)

Summary

Members of the Bill Committee working on the Legal Aid, Sentencing and Punishment of Offenders Bill are dealing with a large number of proposed changes within a very tight Parliamentary timetable. There have been a number of excellent representations both oral and written. LAPG has prepared a short Question and Answer Briefing setting out four ‘routine’ cases and the effect the proposals will have on the clients. We have included a fifth section on market sustainability. 

1 (a) Did you know that if a separating couple do reach an agreement about child contact, neither has the right to obtain free legal advice on how best to keep an arrangement stable.  So if, upon separation, a mother recognises that it will be in the childrens’ best interest to see their father but has some anxieties about him, she cannot access advice on what to do to keep her children safe, or to ensure that they are returned to her after contact.  The father could simply keep the children at the end of the contact visit, causing untold anxiety and emotional trauma and refuse to return them to her.  Without private funds she will not even be able to ascertain her options and will have to either find her way to court instead or take the law into her own hands.

1 (b) But why is that? Because the bill removes the right to free legal advice upon separation save in extreme circumstances of domestic violence, so separating couples will have no opportunity to learn of their rights and how best to protect their children and preserve their contact with both parents.

1 (c) And what will it mean?  It will meant that the primary carer of many more separating couples will simply refuse contact altogether because they will be too anxious about the risks of the other partner failing to return the children. Children will be the main victims being denied a relationship with one of their parents.

1 (d) How much would it cost to give that advice? An initial legal advice session costs only £96.00.  Negotiation to ensure that separated couples prioritise the children’s best interests and that both are aware of their rights in the event of things going wrong, costs in the region of £350.00.  The costs of removing this basic right to knowledge is difficult to quantify but if it means litigants in person will have to navigate the court system, waiting time and resources, children will be displaced from their primary carers and more will need to take the law into their own hands; the costs are clearly going to be significantly more.

2 (a) Did you know that a parent without care after a separation, let’s say a father without means, will not be able to see a solicitor to regain contact to his children.  Imagine the scenario where a mother has a new partner and simply does not wish to engage with the father when he asks to see his children.  It may be that the children desperately want to see their father however, they have no power and unless the mother agrees to mediate, the father will not be able to force her to engage or put the children’s best interests first.  She can simply choose to completely marginalise him from the children’s lives.

2 (b) Why is that? Because, of a supposition that mediation is a panacea which will be appropriate in all but extreme cases of domestic violence.  This is not the case. Mediation provides a solution in some but not all cases and whilst hugely effective when it works, it relies on two engaged parties.

2 (c) So what will happen then? In the above example the father will have to go to court himself, or take the law into his own hands, if he is to maintain a relationship with his children. If he cannot he will simply have to walk away and hope they seek him out when they are adult.

2 (d) How much would it cost to keep this important relationship? As above, initial advice will cost as little as £96.00 and a negotiated settlement less than £500.00.  Again the financial cost to society and to the family involved of denying those without private means is hard to quantify but it is clearly far greater than this.

So children from well off families will have more chance of growing up in a loving relationship with both parents than those from poorer families?

Yes.

3 (a) Did you know that a child can be removed from his or her main carer and taken to another part of England & Wales without the carer having any right to free legal advice to order to secure the child’s return?

3 (b) Why is this? Because the bill only provides that legal aid remain available in cases of international child abduction and provides no funding to pursue preventative strategies to prevent this terribly distressing and costly abuse of children.  Much funding for private law applications (such as a Prohibited Steps Orders to prevent children from being removed from their primary carer in the first place) has been completely removed from the scope and the ‘curative’ measures which remain funded are limited only to international abduction.

3 (c) So what must parents do? Again, parents would have to find their own way through the courts or take matters into their own hands. Can you imagine the distress a removed child would suffer or the anguish their parent would feel?

 3 (d) What does it cost?  Again, the initial advice enabling parents to understand their rights, together with negotiating an agreement not to remove, could cost in the region of £350.00. Should an application to prevent removal be necessary or for the child’s safe return this could be secured for £1500.00.  

4 (a) Did you know that a woman who has been violently beaten persistently throughout her marriage and finds the courage to obtain a Protection Order and separate from her husband, will not be afforded the right to free legal advice when negotiating matters concerning the children or finances if over a year has passed since the Protection Order was made?

4 (b)  What does this mean?  This means that a woman in those circumstances would have to make an application herself and face the perpetrator of that dreadful abuse in court, potentially being cross-examined by him directly.  In reality this would be an unimaginable trauma and she would more than likely leave those negotiations and not have the courage or strength to take the necessary steps to protect her family from a potentially violent father.  She may have to settle her financial case without the protection of the court and be forced back upon the state in circumstances when, had she had public funding an Order might have been secured against the violent perpetrator, thus saving the public purse.

4 (c) How much would it cost?  Representation in Children Act proceedings to conclusion usually costs less than £3,000.00.  The cost of denying the right to legal advice in the above example is unquantifiable to both the vulnerable woman and her children and the cost to the state could be far higher than would have been the case if Financial Orders had been obtained against the other party.

5 (a) Did you know that a newly qualified legal aid lawyer earns between £20,000 and £26,000 per year?  Most work 10 hour days and have no pensions, life insurance, health insurance or any other perks attached to their jobs. 

5 (b) But that’s less than a plumber. Yes, or a teacher, doctor or an electrician. The rates are so low because legal aid lawyers have not effectively had a pay rise for almost 20 years and the proposal to slash a further 10% off fees as from 3 October 2011 will bring fee levels down to that of the early nineties. Indeed some of the fee reductions will lead to reductions of up to 33%.  Yet business rates, rents, salaries and other overheads have increased since the 1990s. With inflation averaging 2.7% since 1994 when many of the current fees were set, for every £100 received in 1994, firms would need £155.12 now to equal that amount. Instead they are going to be paid even less.

5 (c) Did you know that we have some very concrete alternative suggestions for saving the money required which would not result in further fragmentation of the family, danger and distress to children or further marginalisation of the most vulnerable in our society? In particular the Law Society’s proposals have been dismissed without adequate thought and we urge the Government to re-think these proposals.

6. Information about Legal Aid Practitioners Group. LAPG is a membership organisation of private practice and not for profit providers dedicated to ensuring a quality legal aid system for the most vulnerable. We have membership of almost 400 providers, covering private practice and not for profit organisations, firms throughout England and Wales, large and small practices and covering all areas of legal aid work. We attend regular meetings with the LSC and MoJ.

September 2011

Prepared 9th September 2011