Grave Concerns for Access to Justice

The Government's plans for Legal Aid reform will see Legal Aid cut in the vast majority of family, welfare rights and housing matters. Legal Aid will no longer be available in relation to divorce or disputes over contact with children for non-resident parents. The Government has so far attempted to justify this action by asserting that the current Legal Aid system is by far the most expensive in Europe; in actual fact many European legal systems work on an inquisitorial rather than adversarial basis. That is, the judiciary conduct much of the fact finding, evidence gathering and interviewing of parties and witnesses, leaving the state funded advice to parties a much smaller role in the overall system. Whether or not this is an overall less acrimonious way of dealing with family cases is a matter for separate debate, but the fact is that the Court system of England and Wales is already overstretched and any such elemental change in our legal system would cost far more that could ever be saved by the cuts to Legal Aid. The Government is certainly not suggesting a proportional increase in the funding of the Courts and judiciary system to deal with the coming influx of litigants in person.

The cuts will mean that any absent parent would not have access to free legal advice and representation in an attempt to gain contact to their child. Whilst Mediation is being heralded as the salvation to all such problems, this is at best naïve and at worst misleading. Mediation is a wonderful concept, and does indeed help countless families reach agreement in a non adversarial manner about what is best for their children; whilst maintaining a good enough relationship to discuss future issues regarding their children together, as parents should. It is a much better way of resolving family matters that a lengthy, costly and harrowing court battle. However, by its very nature it requires the will from both sides to attend, to engage, and to agree. Without this, and without the pressure of knowing that the alternative is for a Judge to impose a solution on them both, any one of the parties can simply refuse to attend, and once the cuts are in place, there will be no other recourse, unless of course one has the funds to personally fund a Court application. A small point often omitted from the government’s case is that it is already obligatory to attempt Mediation before making an application to Court, and Legal Aid is simply not available unless Mediation has already failed, or is impossible due to extremely serious restrictions such as domestic violence resulting in police involvement and/or injunctive proceedings. The current system also works on a means and merit assessment. Not only must an applicant for Legal Aid qualify financially, but their case must also merit funding because all other negotiation, mediation and legal negotiation has already failed.

The government has also, in an attempt to curb criticism, promised that in cases where there has been domestic violence, the victim will be entitled to legal aid, so as not to have to face the aggressor in person. However, the aggressor, without the benefit of funding, will of course be entitled to cross examine the victim in Court in person, rather than his solicitor or barrister doing so. Also, evidence states that the vast majority of domestic violence incidents are either not reported to police, or are not pursued. Injunction proceedings are often brought, but it is much less harrowing for a victim to avoid a full hearing involving cross examination by accepting an undertaking from the perpetrator. This is a binding promise to the Court, that constitutes contempt of court if breached, a matter punishable by prison, fines, or both. Under the government's plans, this will not suffice. Only an injunction or a criminal conviction will evidence domestic violence.

The true cost to access to justice for anyone but the very rich remains to be seen; but without any recourse to legal advice it is difficult to see how women and children, estranged fathers, and divorcing spouses who have no personal funds due to having been at home caring for the children whilst the other spouse works, can ever hope to have their rights protected by law in England and Wales.