Green Paper on Legal Aid Initial Observations #2: Family mediation in private law family cases

This should be read in conjunction with my earlier post on the Green Paper as it relates to domestic violence.

It is said at 4.69 of the paper that wherever possible, it would be in the best interest of those involved in private law family cases which do not involve domestic violence to take a more direct role in their resolution, using mediation and keeping court proceedings to the minimum necessary. Legal aid will no longer be routinely available for such cases.

Legal aid will be retained for mediation in private law family cases, including private law children and family proceedings and ancillary relief. This will apply to cases without d.v. but even where d.v. is present family mediation will be offered.

A fixed amount of legal help (£150) will be available also to assist with advice during mediation and immediately following to formalise and give legal effect to any agreement reached.

In the words of Bugs, That’s it folks! I venture to suggest that £150 will go only a short distance towards drafting a consent order in AR, and towards preparing the necessary forms and applications for such order to be approved. That is always assuming of course that the parties have been able as Litigants in Person to sort out their own Decrees, from which the power to make such a consent order derives.

It is unclear what is proposed where parties have agreed matters relating to children but their agreement breaks down. Are they expected to go back to mediation again (and again) at this juncture or to go to court unrepresented? My reading of the green paper certainly suggests that in cases of persistent inability or refusal to co-parent there will be no assistance from the state to resort to the courts (except in those cases falling into the d.v. category as per my previous post).

Thus, there appears to be no provision for legal aid for private children cases even where mediation has been tried in good faith and failed.

I am left wondering: what of those cases of implacable hostility (to contact or to ex), or of persistent bullying, aggression or unreasonableness, or of uncertain mental health?

There will be many resident parents whose ex-partners possess a number of these characteristics and who are faced with s8 proceedings for contact or residence unrepresented and without even the benefit of advice. I am not sure whether it is worse for the resident parent to be faced with a litigant in person ex partner or, where said ex is working, the lawyer acting on his instructions. It is in this context where it may be superficially attractive to raise allegations of domestic violence in order to secure representation.

Looking at the other side of the coin, there seems to  be no access to public funding for fathers (or mothers) seeking to maintain a relationship in the face of implacable hostility. Father’s rights groups may have something to say about the fact that there is now no access to justice for the unfortunate father who finds that his ex will not engage in mediation or will not honour agreements reached. It also appears to be the case that it will only be one side that will be funded in cases that involve d.v. (unless of course counter allegations are made, thereby bringing both parties within scope).

There is something unpalatable about the suggestion that funding in private law children cases ought only to be available for the ‘victim’ of domestic abuse. It is not always the case that orders are made in non-mol proceedings based upon findings of fact (and indeed the exception to the scope limitations extends to include non-mol cases yet to be determined). Often orders are not opposed (at present at any rate) and therefore, if relevant, it will fall to the s8 judge to determine any disputes of fact about violence or abuse. Why should she who makes the allegation secure funding where the alleged perpetrator does not, when she has yet to prove her case? If a victim of d.v. is vulnerable if unrepresented, is not a wrongly accused alleged perpetrator also vulnerable to injustice if unrepresented?

3 thoughts on “Green Paper on Legal Aid Initial Observations #2: Family mediation in private law family cases

  1. Although I understand your view, I’m not convinced at all from my experience that Legal Aid does anything but fan the flames in the vast majority of cases.

    I think you make an extremely important point and one that is not heard often if at all, with this:

    “Why should she who makes the allegation secure funding where the alleged perpetrator does not, when she has yet to prove her case? If a victim of d.v. is vulnerable if unrepresented, is not a wrongly accused alleged perpetrator also vulnerable to injustice if unrepresented?”

    • I understand why in non-molestation applications an applicant gets legal aid where an alleged perpetrator usually does not – the argument runs that undertakings can be given (and even if an order is made it is simply prohibiting someone from doing something that frankly they ought not to be doing in the first place). That’s well and good, but in the context of domestic violence within children proceedings it is rather different: the consequences of findings of serious domestic violence are potentially significant and long standing, and the impact of adverse findings on the alleged perpetrators relationship with his or her children profound. And of course now even within non-molestation proceedings it may be rather more difficult to offer undertakings where the acceptance of them would disentitle an applicant from securing public funding in the subsequent children proceedings.

  2. […] This post was mentioned on Twitter by wheresmydad.org.uk™, Lucy Reed. Lucy Reed said: 2nd post on legal aid green paper – initial observations on family mediation in private family law cases: http://bit.ly/a6sEgk #familylaw […]

Leave a Reply

Your email address will not be published. Required fields are marked *