A fairly well-populated list of leading family law luminaries put their names to a letter published in the Times a few weeks ago discussing the proposed changes to provision of Legal Aid. I say “discussing” but in truth they were fairly scathing at how proposed reforms seem to be steamrollering through despite widespread objections expressed in response to the consultation process.
The letter expressing disappointment that the Legal Aid changes are still going through unchanged came as the Legal Aid and sentencing Bill began its Parliamentary committee journey. The proposed changes would see many families no longer able to claim Legal Aid for the costs of a divorce. Instead, they would be encouraged to work with a mediator to reach agreement instead of using court time. The move is expected to save millions at a time as sweeping Government cut-backs are becoming the norm.
Published on July 12, the letter claims the Government is downplaying concerns raised in its own Family Justice Review and calls on people to react positively to amends that would see the damage limited as much as possible. It follows a not dissimilar flurry of letters published at the end of June. All are carefully considered and intelligent letters which get to the heart of the debate about help for those in society who need it most and who will suffer most as a result of these reforms.
While my firm does not accept Legal Aid cases, and never has, I do care about the outcome of this debate. Arguably the most disadvantaged in society will get no help under the new system which, lets face it, looks likely to become law unless something dramatic happens. The rich will still be able to afford to tie up court time arguing over the details of a divorce. For those who do need to keep an eye on the spend, mediation may well work for some but not for all. And in my 30 years’ experience, it doesn’t work well unless people feel they have had advice from their own lawyer on their “rights”. They will still need to pay for that legal advice from an experienced family lawyer. Or if they don’t and their estranged partner does, they may find themselves at a disadvantage. So in my view, the argument that mediation will fill the gap is flawed. For most, it will not work in isolation and may still lead to thousands of couples facing each other in court but having to pay for it all themselves, so the end result is not what was intended, eg reducing court time and cost.
An alternative might be that hundreds (or thousands) of individuals feel trapped inside unhappy marriages because they do not feel they can afford to get divorced.
At a time of austerity, cut backs are inevitable but whether saving £350 million by 2015 through cutting off a link to Legal Aid for thousands who need it is a responsible way of approaching the issue, I am not sure. Maybe instead we should look to the large corporate firms setting aside a slice of the profit to help the less advantaged? That is what The Big Society is all about after all.