Individuals face isolation and without access to legal advice – The Challenge Ahead

Early next year, divorcing couples and parents with a dispute concerning children will no longer be able to receive public funding (often referred to as ‘legal aid’) for representation at court, other than in cases involving domestic violence or forced marriage. In a controversial new Bill from the government first published last year, it has been estimated that some 265,000 family cases a year will no longer be eligible for legal aid and parties will be required to fund their own legal proceedings or represent themselves as litigants in person, at court. By creating these cuts the Ministry of Justice aims to reduce the legal aid budget by £350million by 2014/15.  

Under the plans, the only option available for individuals and families who would have previously been eligible for legal aid will be mediation. Mediation can be a worthwhile and cost effective option for some families and it avoids the adversarial nature of the courts. However, each family matter is unique and although it provides a third party ‘buffer’ in the form of a mediator for the parties, it is not always a suitable option and cannot act as a panacea for all cases. Mediation is not compulsory and parties can opt out. The decision of a mediator is not binding until it has been finalised in an Order and endorsed by a Judge.  However, splits between couples are often acrimonious or there are deep seated issues which cannot readily be resolved by parties attending mediation.

As mediation is not compulsory, individuals who have not been successful in (or who have not attended) mediation could be forced to represent themselves at court as litigants in person.

Family law commentators have reported that the proposed cuts will pose two main problematic consequences: Firstly, a lack of access to publicly funded legal advice will lead to individuals choosing to sweep their problems under the carpet, worrying that they will not be able to afford legal representation.  This could result in couples attempting to carry on living in an unhappy or repressive relationship, or one parent being unable to have access to their children. Couples and parents who are not aware of their legal rights and the options available to them could be left confused and without a remedy if they are worried about funding their case and seeking proper legal advice from a solicitor.

A second consequence of the cuts could be that more individuals will be forced to represent themselves at court as litigants in person, creating a back log in the judicial system, slowing down what is arguably already an overworked and overloaded court system. As a litigant in person usually has no knowledge of the required court procedure and the formalities of filing the right documents at the right time, this can lead to a long and drawn out process and incorrect action being taken. This is not the fault of the litigant in person, and nor should they be expected to have this understanding of what is expected. Unfortunately, if individuals are forced to draft their own evidence or court documents this could result in a weaker case, as the necessary legal principles crucial to the application are sometimes overlooked or not included.

Time will tell whether these worrying consequences will in fact materialise, and unfortunately the results will impact on those individuals who are arguably the most vulnerable in society. Although legal aid will (quite rightly) still be available for those whose cases involve domestic violence or forced marriage, it is the couples who are trapped in unhappy or repressive marriages, or parents who are struggling to find a working solution for contact with children that will suffer. It is important that these parties can find an affordable and workable remedy which will produce a fair result, and it is the job of the legal profession to tackle this challenge as best they can, ensuring that access to justice remains available to all.

At Edmondson Hall we recognise that this uncertainty is worrying for all those concerned about their legal rights.  If you have a family law problem, please contact us – we have flexible fee plans available and offer initial appointments on a fixed fee basis.  Contact Matt Clemence or Dominica McGlennon on 01638 560566 or email mc@edmondsonhall.com for further information.