As a solicitor, who set up a firm with two other family lawyers in 2005 primarily to deal with family legal aid cases for the mixed housing area of Shirley in Southampton where we practice, I was very concerned when I heard of the proposed new reforms for family legal aid work, writes Wendy Hewstone. I am a member of the Legal Aid Practitioner Group committee and have the Law Society council seat for the group so was probably more aware of the proposed changes than many and have seen and responded to numerous consultation papers.
Our firm undertakes 65% family legal aid work – about 20% is public law and 5% child abduction – but the majority is private family such as divorce, children and finances. Notwithstanding comments by the Government that lawyers never refer to mediation we have done so for many years, partly because it is a prerequisite for a full legal aid certificate and partly because we believe in it and have also referred our private paying clients to mediation as well.
However, if clients are not able to agree, possibly because you have an implacably hostile mother refusing contact to the father, or an unequal bargaining position between the well off husband but who is self employed and is concealing his income and the wife on benefits, then ultimately there is no alternative but to make an application to Court.
When the Legal Aid, Sentencing and Punishment of Offenders Bill first came out I was as horrified as most other practitioners that it basically would prevent clients receiving legal aid for any private family law cases. There was a very minor concession that clients who had suffered violence and had an order in the last 12 months could then receive funding but the criteria were very strict and limited.
The Law Society, the LAPG, Resolution and all the other representative bodies argued strongly against the proposals and, with the support of the House of Lords, the Bill was amended and when Ken Clarke finally presented the ultimate version on the House of Commons everyone was pleased that a number of substantial concessions had been made.
The issue is as always that the devil is in the detail. Clients will be still be able to access private family legal aid, both legal help and certificated work, if they qualify through what has become known as the ‘Domestic Violence Gateway’. Section 12 sets out who will qualify and at section 12 (9) it confirms what the definition of domestic violence would be:
‘… “domestic violence” means any incident of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.’
However, there is nothing in the Act which says how this will be proved and this is to be set out in Regulations.
Ken Clarke had said in the House of Commons that it was all the fault of the lawyers:
‘Having lawyers on both sides arguing about custody and access to children does not always lighten the tensions or resolve the dispute, so we are moving towards mediation, which is cheaper”.
Hansard, April 17 2012
Obviously most lawyers were rather surprised he was using pre Children Act 1989 terms (when, of course, the terms are ‘residence’ and ‘contact’). However he did concede that he would accept other forms of proof:
‘… we intend to accept as evidence—we will reflect this in regulations—the following matters: an undertaking given to a court by the other party in lieu of a protective order or injunction against that party for the protection of the applicant, where there is no equivalent undertaking given by the applicant; a police caution for a domestic violence offence by the other party against the applicant; appropriate evidence of admission to a domestic violence refuge; appropriate evidence from a social services department confirming provision of services to the victim in relation to alleged domestic violence; and appropriate evidence from GPs or other medical professionals.’
Clarke also increased the time limit to two years rather than one. The regulations have been prepared but are still in draft form. Those I have seen include:
‘The Lord Chancellor’s present intention is to make regulations (under the powers provided at section 12 of LASPO) stipulating the evidence that may be provided to demonstrate relevant abuse or risk of abuse. It will be for the individual to provide the evidence before the provider can assess whether the client qualifies for the civil legal services which are the subject of the application.’
Draft policy statement MOJ
Most practitioners are seriously concerned about this – and it was confirmed by Hugh Barrett of the Legal Services Commission (LSC) at the Legal Aid Practitioner Group’s Conference on 12th October 2012 – that the LSC will not pay for the medical report or other proof required so the client can qualify through the Domestic Violence Gateway.
As David Emmerson of Resolution stated this leaves the whole policy in tatters. The client (who could be either gender as clients could qualify if there is some form of abuse as long as verified by a GP) may not be able to afford to pay for the medical report or other proof and therefore will not be able to obtain access to legal aid funding.
Legal aid lawyers will not be able to fund the medical reports – which usually cost £50 to £70 – the case is often one of one-off advice, which is often invaluable, but will only pay £86 in the provinces. Even help with referral to mediation and resolving disputes for a children case only recovers a sum of £285.00 with a possible settlement fee of £119. Firms will not be able to sustain additional non recoverable disbursements.
The other limiting factor is that of case starts. The LSC only allow a certain number of case starts to be provided each year for legal help and have reduced those available from next April. In the Southampton area the current number available is 1,510 and this will be 600 next year. Consequently, even if clients do qualify through the Domestic Violence Gateway for funding or need Help with Mediation, which is still in scope and does not require proof of domestic violence, practitioners will not have enough case starts to satisfy the demand.
This is happening now. We have run out of family case starts already, even though our contract lasts until the end of January 2013. We have already turned away 25 clients in one week, although I have staff able to assist.
The reforms will be a self fulfilling prophecy as the LSC will observe how few people needed help when it will be the situation that clients will not be able to pay for the proof needed to reach the Gateway criterion or find an advisor who has enough case starts to take the matter on.
I am seriously worried for the impact on clients. Ultimately lawyers will move to other legal work or re-train completely, they have shown in the past they can adapt, but clients will not have their interests served by these draconian reforms.
- A message to MPs, please stop telling us we don’t do enough pro bono - 17th February 2017
- Adapting to survive - 9th January 2017
- Domestic violence re-visited - 16th January 2015
- ‘I’m a legal aid lawyer to the core and desperately sad that I can’t help as many clients as I could’ - 10th June 2014
- LASPO and the domestic violence gateway - 15th October 2012