child and parent in meeting with solicitor
Family law

Legal aid needs urgent reform, says Justice Committee

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James Harbottle
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Legal aid needs urgent reform, says Justice Committee

Child Law Team
Sarah Hindle – Senior Associate Solicitor – Head of Children Law Team

In 2013 the Government removed the availability of legal aid for most private law family matters (i.e. matters not involving social services). Now, legal aid in private family law matters is generally only available if there are issues of domestic abuse, or to cover the cost of mediation.

But almost all other types of private law family matters are not covered by legal aid, including in particular cases between parents involving arrangements for children, and financial remedy disputes on divorce, where domestic abuse is not an issue.

Needless to say, this has meant that many people have had to deal with these cases with the serious disadvantage of having no legal advice or representation. Some have even chosen not to take their cases to court, rather than have to face court proceedings on their own.

This two-tier justice system is clearly unfair to those of limited means, so it was interesting to see what the House of Commons Justice Committee had to say in a report they recently published, looking at the future of legal aid.


The future of legal aid

The Committee took evidence from a number of expert witnesses, and also received more than 80 written submissions.

The Committee confirmed that: “legal aid is critical to the fairness of the justice system, enabling those without sufficient financial means to participate on equal terms with those that can afford representation.”

The Committee say that legal aid is in urgent need of reform, both to protect the fairness of the justice system and to ensure that the most vulnerable can have access to justice.Legal aid needs urgent reform meeting

One of the biggest problems identified by the Committee is the lack of early legal advice – a number of witnesses to the Committee emphasised that the limited scope of civil and family legal aid means that individuals with legal problems are not able to access advice early enough to stop their problems escalating.

With reference to family matters in particular, it was said that early advice can enable lawyers to explain the process and to provide a “reality check” on what might be achieved by going to court. Early advice can also help to divert cases away from the court, for example towards mediation.

And early advice can also help make the courts operate more efficiently, by ensuring that only cases that need court intervention go to court, and that the issues requiring determination by the court are limited to those relevant to the outcome of the case.

The Committee welcomed the introduction of the Family Mediation Voucher Scheme, which offered mediation participants a financial contribution of up to £500 per family towards the total costs of their mediation in disputes over arrangements for children. The Committee said that the scheme is a positive step, which recognises that more needs to be done to help separating parents. They say: “We believe that if early legal advice was available alongside mediation, this would result in an increase in the numbers using mediation successfully.”child and parent in meeting with solicitor

The Committee says that a possible model for an early advice scheme would be the “family law credit” scheme, as proposed by Resolution, the association of family lawyers, in 2015. The credit would enable someone that meets criteria for legal aid for family mediation to have “an initial meeting with a family lawyer to help them gather evidence they need in order to access legal aid, or to discuss their options”.

The Committee also made other recommendations, including simplifying the means test in those types of case where legal aid is available, and more support for people who have to go to court without a lawyer.

One thing that is quite clear, however, is that there will be no return to the pre-2013 availability of legal aid for most private law family matters. Early advice would certainly be a great help for many, but without full legal representation it is difficult to see how the justice system will be fair for all.

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