Legal Aid Update

In fact it’s been a while since I’ve done more than whine tangentially about the Government’s attempt to wreck the legal aid system. It’s time for an update.

Media coverage of the Bill remains pretty thin on the ground, but it has picked up a little (See for example this example from a local TV station, showcasing the lovely Totnes). There have been concessions on some points not connected to family law, such as police station representation. The Bill has had a rough ride in the Lords, and is due to go to Committee stage there next week. It should be interesting.

There is a whiff of good news, although I wouldn’t get too excited. There is some talk of a concession on domestic violence – with Djanogly saying that the Government view the definition of domestic abuse in the Bill as consistent with the ACPO definition of domestic abuse (it plainly isn’t) and that they would be happy to amend it – I think the argument runs like this: “Look, they say the same thing, you just can’t see it. But just for you, we’ll amend it. Alright?” Which rather begs the question “If you always intended it to mean what the ACPO definition says why the hell didn’t you just use that definition when you drafted the thing? And why has it taken so long to “clarify” that you always meant it to say that?” (that’s two questions, my bad).

Anyway, carping aside, this is good news if it happens – but it still does not deal with the important point that the detailed criteria to be met in order to actually qualify for legal aid are not contained in the Bill, and it is those which are most likely to exclude so many d.v. victims from accessing legal aid (the green paper makes clear that the criteria will be strict and victims will need to provide objective evidence from very limited categories). Baroness Butler-Sloss has asked for those criteria to be published so that they can be scrutinised alongside the Bill. That is essential, as they will otherwise be slipped through in some piece of secondary legislation. The manner of the climbdown on the ACPO definition is significant – this is not an acknowledgment that the Government had got it wrong, had been attempting to use too narrow a definition, to adopt a too stringent approach. All that has been acknowledged is poor drafting, not substantively bad policy. Campaigners on this issue must not let the Government off the hook the moment they adopt the ACPO guidance. And beyond that still undealt with are all those arguments about equality of arms for alleged perpetrators, the cross examination of victims by LiP perpetrators. Much to be dealt with…

Also significant, Jonathan Djanogly appears to have waved the white flag on the economic justification of the LASPO Bill. No-one round here is surprised to learn that the austerity drive was a convenient cover for an ideologically driven slash and burn. That it has taken so long for the Government to admit that it is impossible to say how much the proposals will save us or cost us is remarkable given the wealth of analysis demonstrating the lack of prior research and the non-existent evidence base for the Government’s figures. There is an excellent analysis of this development on Social Justice First, pointing out the inevitable rise in Litigants in Person that will flow from the Bill if enacted. Djanogly appeared last week to be still of the bizarre view that there will not be any significant increase in the numbers of litigants in person. “Constructive knowledge” is a phrase which I have rarely used since law school, but it seems rather apt, for surely this must be a wilful closing of the governmental eye?

I despair at what is on the horizon. It’s a perfect storm for family law. Strip away funding for advice to help families with housing, debt and benefit problems, all of which are chronic family stressors and may contribute to relationship breakdown. Strip away the legal aid for families who have suffered relationship breakdown, point everyone in the direction of mediators, who will turn away many where there are domestic abuse or control issues apparent, most of whom will fall outwith the strict d.v. definition for the purposes of legal aid notwithstanding the fact that they can’t mediate…And if the storm didn’t sink the ship, the plan to reform the Children Act to create some new presumption of contact about which everyone will be either mightily excited, ill informed or petrified is a metaphorical torpedo to the hull of the good ship Family Justice. As any fule no if you want to create more litigation, reform the law.

Anyway, more on the reforms to the “custody” laws anon…Back to legal aid.

What once seemed like a conspiracy theory that many wryly postulated but few actually believed, seems to be more frequently being put forward as a serious theory: sharp practice by the LSC. One example in the Gazette, as reported by Family Lore. Whether it is a deliberate policy or incompetence matters little to those of us who are perpetually anxious as to whether or not there will be a rejected claim in the morning post each day. It becomes a sort of bloody minded game of correspondence chess, trying to outwit the unseen opponents by guessing whether it is missing seals, illegible signatures or wonky staples that they will be hunting down this week. It’s like fighting the Borg – you think you’ve found a setting that will work but by the time you’ve worked it out “they’ve adapted Captain – our phasers are useless”. Sometimes I think that resistance is indeed futile.

 

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