Comment piece for The Times

Comment Piece

08 Nov 2011

3 November 2011

With the Government moving full-steam ahead with its controversial plans to cut family legal aid, despite growing concern from a wide range of leading organizations and charities, the publication of a new report from Citizens Advice today (3 November) is extremely timely and should be ringing loud alarm bells in the corridors of Westminster.

The report’s publication coincides with the release of the final report by the Family Justice Review Panel, which has the potential to be a springboard for progressive reform. Such reform is very much needed, to ensure that family law is fit for 21st century purpose.

But the findings of the Citizens Advice report – a thoughtful assessment of family issues within the context of changes planned by the Government, including the sweeping cuts to legal aid set out in the Legal Aid, Sentencing and Punishment of Offenders Bill – add to increasing fears that the Government’s fragmented approach to these issues will torpedo any progress.

Of course, the fact that the Government commissioned the Family Justice Review suggests a political will to look at real, sensible reform of family law. But the opportunity could be squandered thanks to the same Government’s misguided plans to cut legal aid, and the apparent unwillingness of Ministers to listen to the multitude of voices arguing that the cuts will do real, lasting damage to countless lives.

Disturbingly, the Citizens Advice report concludes that family breakdown problems will get worse without legal aid – with the worst affected likely to be women with dependent children – and it warns of a looming advice gap on relationship problems, with Citizens Advice Bureaux unable to fill the vacuum left by cuts to family legal aid.

Findings from a survey by Citizens Advice and Resolution of almost 1,000 enquiries to Citizens Advice Bureaux highlighted that over half (54 per cent) of clients needed referral to a family law solicitor, and over 60 per cent were entitled to legal aid under the current rules.

The research suggests that a staggering 80 per cent of clients needing help from a family law solicitor and eligible for legal aid under the current rules will no longer qualify if the cuts are implemented.

And even some of the few people still entitled to legal aid may have nowhere to turn to. With legal aid increasingly uneconomical, the Bill may be the final nail in the coffin for many legal aid providers, leaving too few to help those still eligible for assistance.

So the findings add to the increasing evidence that the Government is getting it badly wrong on this issue. It is becoming more and more apparent that the Legal Aid Bill needs to be amended to avoid huge unfairness to families.

We should pause here to note that these are not academic matters of little interest beyond the legal community. The implications for society should not be underestimated. Although statistics can fail to illustrate the human impact, it is worth remembering that the 125,000 divorces every year represent just 20 per cent of broken relationships, and that every year some half a million children and adults are involved in the family justice system.

For many people, divorce and separation can be one of the most difficult and stressful times of their lives, and the impact on children can be severe.

Although there are no easy answers, there are ways of mitigating the worst effects of family breakdown. But again and again, those dealing with these difficult issues see that a key starting point for people experiencing relationship breakdown is access to good quality information, advice and support. This is especially true for those who are experiencing trauma because of relationship breakdown, who are vulnerable for other reasons or who are struggling with the challenge of lone parenthood.

So ministers need to remember that, for many separating couples, a proper understanding of their legal rights is a crucial early step that can allow them to go on to negotiate in a constructive manner and reach fair agreements. This understanding requires tailored legal advice. It is crucial that a gaping advice gap on family law be avoided.

None of this is to say that legal aid doesn’t need to be reformed. But – by stripping away affordable justice from huge numbers of vulnerable families, by depriving and penalizing the poorest and most vulnerable, and by creating a situation in which thousands of children could lose contact with one of their parents – the Legal Aid, Sentencing and Punishment of Offenders Bill amounts to an attack on the family and on children in particular.

As the Bill moves on to the House of Lords, we must hope that Peers are able and willing to curb the more draconian and unfair elements of this unhappy piece of legislation.

David Allison

Chair, Resolution

David Allison is Chair of Resolution a group of over 6,000 family lawyers in England and Wales. Established in 1982 and formerly known as The Solicitors’ Family Law Association, Resolution promotes a non-confrontational, constructive approach to resolving family disputes. David is also a partner with the law firm Family Law in Partnership.