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Legal Aid cuts – who really pays?

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Legal Aid cuts – who really pays?.

Cuts to Legal Aid in family law cases were designed to shave £279m off the annual bill for England and Wales but there have been a raft of adverse effects so the question has to be asked: what has been the true cost of the cuts and who is paying for them?

Legal Aid for all but the most serious of family law cases was abolished in April 2013, with the intention of reducing the annual £2bn bill for England and Wales. Part of the Government’s radical spending review, civil Legal Aid cuts were to account for £279 million of the total of £350 million that needed to be saved by the Ministry of Justice. But what have the cuts really “cost”?

I was struck by a post on a friend’s Facebook page the other day. It was a message from a local family barrister explaining how frustrated he was to have been in court all day on a case listed for a three-day hearing, only to find that one of the parties (against whom allegations had been made) was unrepresented and illiterate. The court apparently asked staff to try and find a lawyer to act for the unrepresented party free of charge and, unsurprisingly, was not successful. He went on to comment that even with a lawyer, the case was more likely to need six days of court time rather than three and, as anyone using the court system will know, such a date would be unlikely for many months to come.

The Telegraph has reported that mothers are especially impacted. Many more women than men were eligible for Legal Aid when it was available, as many more stay at home with the children or only have a part-time wage. The report suggests that the amount of unrepresented women involved in children cases rose from 16,458 between April and December 2012, to 27,017 in the same period in 2013. CAFCASS statistics show that 22% of cases had one party represented before the Legal Aid cuts, and 18% of cases had neither party represented. By December 2013 this had changed to be only 4% of cases having one party represented, and worryingly, 42% of cases had neither side with legal representation.

In the days when Legal Aid was more freely available, it was in some ways a double-edged sword. Some cases (in which my client was privately funded) would drag on as the other party was not motivated to be reasonable, as they were not getting a bill from their lawyer each month. In other cases, at least the other person would get some legal advice, and with good enough representation, cases could be thrashed out sensibly without the need for numerous hearings.

Now, the cuts in Legal Aid mean that, very often, intransigent opponents will not seek any advice at all. In cases where expert evidence is required, the cost may fall entirely to be paid by the other party who is paying for their case privately. Equally, it is now all too often the case that the privately funded party (even when they are responding to an application) are tasked with the preparation of a bundle of papers for the court to use, and recent changes make this obligatory for every hearing. It is not then just those who would have been eligible for Legal Aid who are suffering.

And all of this has taken its toll on the profession itself with hundreds of firms up and down the country either culling large numbers of staff from their family departments, shutting the family department altogether, or indeed having to close the whole firm. The Bar Standards Board and Bar Council’s joint report on “Barristers’ Working Lives” shows that 32% of family barristers polled said they were not satisfied, 77% of those family barristers who indicated they were looking to move away from the profession cited the Legal Aid cuts as a reason, and more than 50% of all barristers polled said they would not recommend it as a career.

A sorry tale for all concerned. With a General Election looming next year, this topic is likely to be a vote changer.

Kate Butler
Family lawyer, Northampton

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