The Impact Of Legal Aid Cuts On Family Justice

The impact of legal aidcuts on Family JusticeA report by the Family Court Unions Parliamentary Group – April 20141

INTRODUCTIONIntroductionP2 INTRODUCTIONP3 FORWARDP4 NAPOP6 PCSP9 Simpson Millar LLPT Cuts to Legal AidImpact of Court ClosuresThe Closure of Children’s Contact CentresA Single Family CourtThe Future for Cafcass.Membership of the Group is open to allparliamentarians. If you require further information orwould like to be included in future mailings pleasecontact the Group’s coordinator: Simeon Andrews,Union Services, 160 Falcon Road, London SW112LN / andrewss@parliament.uk/020 7801 2732 PHOTO: Andrew AitchisonCONTENTShe Family Court Unions Parliamentary Groupwas formed in 2006 to support the work ofthose employed in the Family Justice system. Itmeets every two months whilst Parliament is sittingwith officers from NAPO – the Probation and FamilyCourt Union – PCS – the union representing courtstaff – and Simpson Millar Sollicitors – a law practicespecialising in family justice. The Group is chaired byElfyn Llwyd MP and comprises over 20 MPs and Peerson a cross-party basis. The current focus of theGroup’s campaigns within Parliament are:2

FORWARDForwardRt Hon Elfyn Llwyd MPChair, Family Court Unions Parliamentary Group 3Rt Hon Elfyn Llwyd MPOne in four people whowere previously eligiblefor legal aid have beenleft without fair andequal access to justicePHOTO: Andrew AitchisonOn 1 April 2013, a host of civil and familymatters were removed from the scope of legalaid, including debt advice where an individualis not at immediate risk of homelessness; educationmatters unrelated to special needs education; welfarebenefits; and private family law matters where nodomestic violence can be proven to have taken placein the past two years.Access to justice is now only available to thosewho can afford it.This has resulted in entrenched and drawn-outcourt cases, as people are left with no alternativebut to represent themselves as litigants in person.Devastatingly, 68,000 children a year will beaffected by the government’s ill-conceived changesto private family law. We cannot overestimate thedamaging effect which will be had on childrencaught up in these untidy disputes.Across the country, Child Contact Centres areclosing as a result of budget cuts – meaning thousandsof children will lose access to a parent. These centresare a lifeline for troubled families, but at present, thereis no statutory obligation to keep them open.One in four people who were previously eligible forlegal aid have been left without fair and equal accessto justice. It is clear to us that these reforms haveeverything to do with saving money – yet the cost tosociety is overwhelming.On 1 April, the Family Court Unions ParliamentaryGroup will hold a rally in parliament to protest thesereforms. I urge you to join us – and to hear first-handabout the impact these changes are having onpeople’s lives.

NAPOMoney saved on legal aid is beiare not representedby a solicitor andrepresenting themselvesNapo is the professional body and largest tradeunion for staff in Cafcass, supporting thousandsof children and families during terriblydistressing times in their lives.When legal aid cuts were announced we warnedof probable impacts on people seeking justice, theefficiency of the court system and workloads of staff.A recent Napo survey of members within private lawareas highlights how quickly our fears are becominga reality.These members report a dramatic increase incases registered where one or both parties are notrepresented by a solicitor and representingthemselves, known as litigants-in-person (LIPs). Cafcassfigures show that before legal aid cuts 18% of casesbegan with neither party represented. 82% of casesbegan with one party (60%) or both parties (22%)legally represented. It was more likely that bothparents would have representation than neither.However, almost immediately the cuts took effectthis position was reversed. By December 2013 only4% of cases started with both parties represented bya solicitor. 42% of cases started with neither partyrepresented, i.e. we’re 10 times more likely to seePHOTO: Jess Hurd/reportdigital.co.ukDramatic increase incases registered whereone or both parties4

NAPOtwo parents start fighting for residence/contactwithout legal representation than we are to see bothof them start by appointing a solicitor!Other impacts also surface. Parties can pay forexperts to carry out tests or provide additionalinformation to prove or disprove allegations, e.g.regarding alleged heavy alcohol or drug misuse;or where threats of domestic violence are allegedsupporting police information can be bought.Without legal aid members say this is alreadyhappening less.Members also report cases are taking longer.As one member said, “Money saved on legal aid isbeing spent on more court time.”Four out of five members responding who work inEarly Intervention Teams (EIT) said they spend longerclarifying expectations, identifying legal baselines orexplaining the court process. Almost two in threesaid they spend more time on court duties and inlonger first hearings. 92% of respondents withinWork After First Hearing (WAFH) teams indicateincreased workloads. 36% report spending longerclarifying roles and process. 36% say they’re spendingmore time on phone calls and interviews and 19%report spending longer or having more interviewswith parties. Parents with low literacy levels are leastlikely to be able to afford a solicitor but find it harderto cope with being a LIP.Napo believe these problems are only beginningto emerge and will be monitoring these areasperiodically, whilst aiming to work in partnership withCafcass to manage the problems and minimise theirimpacts. However, until access to justice is againrecognised as a legitimate equal right for everyonethen these challenges are likely to grow. 5PHOTO: SHUTTERSTOCKng spent on more court timeWe’re 10 timesmore likely to see twoparents start fighting forcustody/access withoutlegal representation

PCSLegal aid cuts disrupting familyPCS, the Public and Commercial Services union,represent members who work in the family courtsas ushers, greeting and reassuring the public;administrators receiving and processing applications,preparing case files and orders dealing with enquiries;Legal Advisers managing cases and advising andsupporting the magistracy and judiciary and managerstrying to ensure the system runs smoothly in spite ofthe drastic cuts.The rise in unrepresented parties since the civil legalaid cuts came in, as identified by Napo, is causingmassive disruption. Lawyers save court time and money.Before the funding cuts in family cases they were morelikely to be available to encourage clients to seekmediation and agree arrangements, resolving somecases whilst the court hears others.Disputes between parents distress children. Cuts haveresulted in more contested cases which take up moretime and caused more aggression and distress in court.Cuts were implemented without provision forlitigants in person to access scientific tests to monitordrug and alcohol abuse or refute false allegations.PHOTO: Andrew AitchisonDisputes betweenparents distress children.Cuts have resulted inmore aggression anddistress in court6

PCSPHOTO: SHUTTERSTOCKcourtsA day in the life of a family courtThe following case study is given as an exampleof how a rise in unrepresented parties has ledto disruption in the family justice process.Usher “the applicant in case no.6 is unrepresented,he is asking when the case will go on.”Legal Adviser “that is listed ‘at risk’ so we cannot say,until we know if the ‘all day’ at number 3 is effective.Cases 2 and 4 are Care applications for directions.Is the CAFCASS officer here? We have three firsttime listings and no safeguarding reports.”Usher “No, the respondent in case 1 is gettingagitated, the applicant does not want to talk tohim, neither have solicitors.”Legal Adviser “There are sensitive issues in that case.It may help if I speak to him.”Usher brings Mr Smith into court. Mr Smith “ I want the court to give me contact now.This case is a waste of time. She took the childrenand she must let me see them every weekendand have them ready on time.”7The rise in unrepresentedparties since the civilcivil legal aid cuts camein is causing massivedisruption

PCSShe isn’t mixing withthe right crowd, sheneeds to concentrateon her studies notgo to partiesLegal Adviser “the application says your daughterwants you to be more flexible so she can go out withher friends sometimes.”Mr Smith “She isn’t mixing with the right crowd,she needs to concentrate on her studies not go toparties.”Legal Adviser “There is a Children and Families’ Adviserat court today you should talk to them. They may beable to help.”Mr Smith “I have already spoken to them over thephone. They don’t understand. My wife doesn’t keepenough structure in the children’s lives, she lets themspend too much time with their friends.”Legal Adviser “It is better for your children if you agreecontact without a contested hearing. Your daughteris nearly 14. The Magistrates will want to know abouther wishes and feelings. It would be best if you talkto CAFCASS.”PHOTO: SHUTTERSTOCKUsher comes in “Mr Smith please wait outside I needto tell the Legal Adviser about the other cases.”If funding for a lawyer had been available through legalaid, then the Smiths’ case would have more likely beendealt with through mediation, freeing up the courts todeal with other cases. In this instance case 6 had to beadjourned until another day because the court ran outof time.Case 5 also had to be adjourned for two weeksbecause the unrepresented parties had not had aSafeguarding Report completed by CAFCASS where cutsmean staff are struggling to meet workload demand. 8

Simpson Millar LLPPost LASPO – what are ‘frontline’ lawyers experiencing?We are sending parents of children awaysimply because they are not victims ofdomestic violence Many parents are looking to secure legal advice andrepresentation to address serious problems in arelationship or with their children but find that whilstthey qualify for legal aid on an income and capitalbasis, they are not victims of domestic abuse and assuch, post LASPO (Legal Aid, Sentencing andPunishment of Offenders Act 2012), are no longereligible for legal aid help and advice and representationfrom a Solicitor.Our records at Simpson Millar show that in February2014 we have received a similar number of newenquiries from members of the public whose financialresources make them eligible for legal aid, comparedto February 2013. However, in February 2013 weopened 42 Legal Aid case files and in February 2014we have opened only 19 Legal Aid case files. PostLASPO we are turning away, on a month to monthbasis, more than 50% of all enquirers who wouldpreviously have been eligible for legal aid. Most ofthose we turn away are mothers or fathers trying tosecure contact with children, regulate contact orsecure financial support or assistance for themselvesand their children post separation. Half of all marriagesend in divorce and one in three children lives with onlyone biological parent. Failure to access legal advice onfamily breakdown will almost certainly have an adverseaffect for this generation of children. Even in cases where there has been Domesticviolence, potential new clients struggle to meet theDomestic Violence Criteria to secure eligibility forlegal aid Many genuine victims of domestic abuse are unable tomeet the restrictive criteria set by the Legal Aid9Emma Pearmaine –Partner, Head of FamilyEmma Hopkins-Jones– AssociateMost of those we turnaway are mothers orfathers trying to securecontact with children