Part of the government’s well-publicised plan to make massive spending cuts is a proposed saving of £350m from the legal aid budget. A large proportion of this will come directly from a reduction in provision of legal aid in private law family cases.
The cuts will leave thousands of parents facing the prospect of dealing with relationship breakdown without legal help at a time when it is often most needed. It is likely to leave many separated parents who have primary responsibility for caring for their children unable to obtain a fair financial settlement with their former partners. This could, of course, lead to hardship for the children.
The biggest impact will be felt by children, as the cuts will mean that many will face the risk of not seeing one of their parents after separation. This is because it is not uncommon for the parent who is caring for the child to deny access, leaving the other with no option but to seek recourse through the family courts. If the changes to legal aid come into force, the family courts will no longer be an option for many.
At the moment, parents are entitled to legal aid (provided that they meet the financial criteria and there is merit in their application) to cover private law family cases, such as:
- Financial proceedings arising out of the breakdown of marriage or a relationship;
- Applications for Residence and Contact Orders for children.
The Legal Aid, Sentencing and Punishment of Offenders Bill is currently being considered by ministers and, if it is enacted which seems likely – despite the Law Society and legal professionals campaigning heavily against it – access to legal aid for family cases will be almost totally removed.
One of the changes will be a requirement to demonstrate domestic abuse within the relationship. This will mean that most families fall outside the scope of eligibility or may encourage them to raise these issues vexatiously – which would have a detrimental impact on cases where domestic abuse is an important and very relevant issue.
Legal aid will still be available if a local authority is seeking to remove children from their parents, in cases of forced marriage, domestic abuse and in international child abduction. Other than these, the only private children applications that will be eligible for legal aid will be when there is a risk that children could be taken abroad without consent. If, however, the threat is that children will be taken non-consensually to somewhere else within the jurisdiction of England and Wales (something that Lyons Davidson’s Family team regularly seek protection orders against), this will no longer be eligible for legal aid.
Mediation will continue to be funded by legal aid in many cases, and attendance and consideration of mediation is now a pre-requisite for making a family law application. When mediation fails, a parent will be expected to conduct their own application for contact with their child. This will include situations when a parent has no contact with their child but their ex-partner refuses to attend or cooperate in mediation; or where there are significant compliance and enforceability issues relating to a court order.
The reduction in funding will massively increase the number of parents litigating without representation. These cases, without experienced advocates, will naturally take up more of the court’s time and resources, leaving vulnerable children without resolution.
The government is pushing hard to get the Bill through Parliament as soon as possible, so if there are family matters you are concerned about, it is worth seeking legal advice now, while access to legal aid is less restricted.