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09 DEC 2014

Judges hit back at effect of legal aid cuts

Judges hit back at effect of legal aid cuts
As we near the end of 2014 the effects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which slashed £350m a year out of the civil legal aid budget, are becoming more and more apparent, with an increasing number of litigants in person attempting to navigate the complexities of the court system alone. Resolution recently calculated that at least two thirds of cases working their way through the family courts now involve at least one side who does not have the assistance of a lawyer.

The end of last month saw yet another senior judge add their voice to the discord within the profession as to the effect the legal aid cuts are having on the ability of the courts to ensure justice for all parties. Court of Appeal Judge Dame Elizabeth Gloster went on record last week stating, 'I’m horrified at the number of litigants in person. We are trying to provide them with [help]. The large numbers of [litigants in person] leads to delay and is going to clog up the system. Cases with unrepresented litigants take longer.' Her remarks were made at the launch of Innovation in Law, a report by Hodge Jones and Allen, which highlighted the low morale of lawyers in this field with 83% believing that justice is not accessible to all with 80% stating that the situation is worse than 5 years ago.

Dame Gloster’s observations support recent remarks made by Judge Louise Hallam, a senior family court judge who condemned the pared-back legal aid system after an illiterate mother of four, was forced to represent herself in a court hearing over the custody of her children; depriving her of the opportunity of a fair trial. The mother’s former husband was granted assistance with his legal fees because the local authority supported his case for custody, whilst she was left unrepresented despite having hearing, speech and learning difficulties.

Judge Hallam said:

'The mother still has concerns about the father’s care for the children and many of those concerns are shared by the local authority, so she has not been running a fanciful case... Without legal aid, therefore, the mother, on her own, would be facing two advocates pursuing a case against her. On any basis that cannot be equality of arms…she is the party with the least ability, the greatest vulnerability and she should have had the benefit of legal representation.'
Hallam told the hearing: 'If legal aid is being refused to people such as this, I am satisfied that injustices will occur … Mothers in her situation should have proper and full access to the court with the assistance of legal advice.'

Calls from notable figures to reintroduce legal aid to some areas, include former director of public prosecutions Sir Keir Starmer, KCB, QC who argued that relying on lawyers who gave their time for free was not the way to restore access to justice.
Whilst this will be of no surprise to family practitioners, it seems that even the highest ranks of the judiciary are finally taking note of a brewing crisis at the coalface. Sir James Munby, President of the Family Division made a stand in August of this year in the case of Q v Q [2014] EWFC 7, where he ordered that costs would have to be borne by Her Majesty’s Courts & Tribunals Service (HMCTS) if a father’s right to a fair trial were to be upheld.

In his latest judgment he accused the government of washing its hands of the problem it has created by failing to provide legal aid for vulnerable parents in child custody cases. The matter known simply as 'In the Matter of D (A Child)', relates to the removal of a child by Swindon Borough Council from his parents, both of whom have learning difficulties and are therefore unable to represent themselves in court. Sir James Munby continued:

'In these circumstances it is unthinkable that the parents should have to face the local authority’s application without proper representation. To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the [European convention on human rights]; it would be a denial of justice. The child is also entitled to a fair trial.'
He continued:

'I have accordingly directed that there be a further hearing at which, assuming that the parents still do not have legal aid, I shall decide whether or not their costs are to be funded by one, or some, or all of (listing them in no particular order) the local authority, as the public authority bringing the proceedings, the legal aid fund, on the basis that D’s own interests require an end to the delay.'
It will be to 2015 that we will look to see if those with control of the Legal Aid purse strings finally take note of the concerns of those who practice within this field, now joined by the judiciary who are naturally disinclined to wade into such matters; and consent to a much needed review of the current rules.

This article was originally published on the Pump Court Chambers website and has been reproduced here with permission of the copyright owner.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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