Carry on with the cuts and good divorce reforms will fail

Comment Piece

08 Nov 2011

4 November 2011

This week’s publication of the Family Justice Review has confirmed what insiders have long known: we need urgently to reform family law in England and Wales. For those of us working daily with families facing the emotional upheaval of separation and divorce, it is painfully apparent that too many aspects of family law in England and Wales are not fit for 21st century purpose. Organisations like Resolution have long argued that there is an 0overwhelming case for progressive reform.

The detail of the report needs careful scrutiny and the challenges will be many, not least in implementing sweeping reform at the human level. But its overall direction is welcome, particularly the focus on demystifying and streamlining the process for users, diverting cases from court and reducing delay in those cases which do go to court. The report could be a major springboard for positive change.

But if a better connected approach to family law is what is needed, then any changes at the macro level need to reflect this. It was therefore somewhat ironic that on the same day that the Family Justice Review was published, the Legal Aid, Sentencing and Punishment of Offenders Bill – with its devastating proposals to make sweeping cuts to legal aid – received its first reading in the House of Lords.

The Review and the Legal Aid Bill are not easy bedfellows. Together they expose the government’s fragmented approach to family law and how a powerful undercurrent of cost cutting could cripple reforming intent (and in the longer term increase costs).

Under the cuts, legal aid will not be available for most parents and adults involved in private family law, save for attempts at mediation, for victims of domestic violence in limited circumstances and for those protecting children in certain cases raising child abuse. So a father who is prevented by the mother from seeing their children will not get legal aid to apply for a contact order and children will lose contact with that father. Women will not generally get legal aid to pursue financial claims on divorce, meaning many women and children could lose their homes, plunging them into poverty and reliance on the welfare state.

A new report from Citizens Advice. reinforces fears that family breakdown problems will get worse without legal aid and warns of a growing advice gap with Citizens Advice Bureaux unable to fill the vacuum. For many separating couples, a good understanding of their legal rights is a vital early step that helps them to negotiate in a constructive manner and reach fair agreements.

Practitioners predict that, with the virtual abolition of legal aid in family cases, life at the coal face will be tough and the honourable intentions of the Review panel will be fundamentally undermined. The system will be overrun with people ignorant of their rights, who will either clog up the court system as litigants in person or, worse still, choose not to pursue their rights. Not only could this once-in-a-generation opportunity be torpedoed by the Government’s deeply-flawed plans to cut legal aid, but the risk is real, lasting damage to the lives of countless families and children.

Fairness to families will not be achieved by removing affordable justice for the more vulnerable. We applaud the work of the Family Justice Review panel and want their vision for a better family justice system to become a reality. Hopefully the Government has the political courage to amend the Legal Aid Bill before it’s too late to further this end.

Joanne Edwards is a member of the National Committee at 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. Joanne is also a partner with the London-based law firm Manches LLP.

This article was originally published in The Observer on Sunday 6 November 2011.