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Family Law

The leading authority on all aspects of family law

21 JUN 2011

Controversial Legal Aid Bill published

Big BenThe Government has today published the controversial Legal Aid, Sentencing and Punishment of Offenders Bill which sets out cuts to legal aid and funding of civil litigation.

The Bill proposes to cut funding to family legal aid services in all areas with the exception of orders or procedures for the care, supervision or protection of children. The proposal would implement the Green Paper on the Reform of Legal Aid in England and Wales published in November as well as Lord Justice Jackson's earlier review on Civil Litigation Costs

The Director of Legal Aid Casework, who will replace the Legal Services Commission under the Bill, can provide legal aid funding in exceptional circumstances to an individual if failure to do so would breach their Human Rights, EU law or "it is appropriate to do so" given the risk of not providing funding. 

The Government also announced today in the response to its legal aid consultation that the fees paid to lawyers in civil and family cases will be reduced by 10% across the board. Similar levels of reductions will be made to experts' fees.  

The family law solicitors' association, Resolution, has accused the government of not listening to the responses to the consultation. 

David Allison, chair of Resolution said: "The consultation process has been the latest in a line of similar coalition government fiascos. It received an unprecedented 5,000 responses according to the Ministry of Justice's own figures. It is inconceivable that these responses have been given full and proper consideration."

Funding for cases where domestic violence is involved will continue. However, family lawyers are concerned that people no longer eligible for legal aid in ordinary circumstances may be motivated to make false accusations of domestic violence in order to gain access to legal aid funding.  

Family Law PSL, Hayley Trim commented: "As anticipated, legal aid has been cut for most private children law matters and financial orders on divorce. It seems that both parties in relation to an application under the Family Law Act 1996 (occupation and non-molestation orders) will be able to claim public funding. However if one party has been abused or is at risk of abuse by the other, the 'victim' (but not the perpetrator) may be eligible for funding in relation to matters 'arising out of a family relationship.' This is very broad and includes applications under the Matrimonial Causes Act 1973 and the Children Act 1989.

"Similarly there is eligibility for various Children Act proceedings where a child is at risk of abuse from someone other than the applicant. Abuse is defined as physical or mental and includes sexual abuse, violence, neglect, maltreatment and exploitation."

She continued: "This differential treatment of alleged perpetrator and victim gives rise to arguments about equality of arms and a major concern that false or exaggerated accusations of abuse or fear of it will be made purely to obtain legal funding where it would not otherwise be available under this Bill. This goes against the objective of taking matters away from the courts and encouraging ADR."    

Resolution has called the proposals contained in the Bill "an attack on childhood and the family". Mr Allison said: "Where there are serious problems between parents, stripping away affordable justice will force families into situations where children simply lose contact with one of their parents, which is wholly unacceptable in a civilized society.

"The Government seems determined to turn a deaf ear to the misery that these cuts could create for thousands of children and families. Not to mention the long term impact the cuts will have on wider society and the costs that will transfer to other state funded services as people develop other difficulties such as mental health issues, as they seek to work through these things on their own," he added.

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