At the risk of becoming monotonous, news of the demise of family legal aid is not greatly exaggerated. The headlines yesterday were full of 30% MoJ cuts, with the heft of those cuts falling to be met by shrinkage of the legal aid budget. We will wait until Wednesday to find out quite how bad it will be, and whether reports of compulsory mediation are correct or not (such moves, if announced this week in advance of the Family Justice Review report rather tend to undermine its purpose and credibility). In the meantime, reproduced here is a distillation of my random musings on the motorway this morning.
I have a mental picture of the family justice system like some kind of Wonka-esque intricate pressurised system of pipes and valves. You can shut off a particular release valve, but at some point the pipes begin to clank and steam will escape from the weakest point in the system with a shrill whistle. You need to constantly readjust the system, and release the pressure in a managed way in order to stop the whole thing from overheating or going kaput. It’s not a very good analogy, but that’s why I’m a lawyer and not a novelist. And since in the world of family justice we are coming to terms with the barely functional it will do.
It is easy to say that parents who are in dispute about their children should not benefit from legal aid to help them perpetuate those harmful conflicts. But whilst I frequently have to refrain from banging my client’s head together with that of his/her ex out of sheer frustration for how pathetically lacking in perspective they are, I know from experience that by and large the parents caught up in these disputes are confident that they are doing the right thing, even if most reasonably objective observers would be horrified. To say that we should leave these people to get on with their petty disputes without wasting public funds on them is to fail to properly think through the consequences of that withdrawal. Withdrawing support and advice does not create insight, does not lift the fog of emotion and hurt, does not enhance the ability to make sensible decisions. People who behave like idiots in court are unlikely to behave immaculately out of it. People who struggle to accept sensible advice are unlikely to behave sensibly in the absence of any advice.
Dealing with what one might call ‘high conflict’ contact and residence disputes in a court context is not ideal. It is a process which can exacerbate the battle mentality, particularly when it is running inefficiently slowly. However for some cases it is the only realistic forum and is better than leaving the parties to take the law into their own hands. Clearly we have to work harder at encouraging mediation and other consensual mechanisms for resolving disputes, but the the type of case I am talking about here is simply not going to be made better by mediation. You can say that parties must attend mediation, but I doubt that it is realistic to suppose we could enforce that attendance. And you also can’t force parties to agree. If you want to force parties to adhere to a particular arrangement you need a court. Some cases will always need court assistance. We need to steer those cases towards sensible resolutions through legal advice, not abandon them to their own self absorption.
I can tell you now what I absolutely do NOT think will happen if legal aid is withdrawn for private law disputes: there will not be a Eureka! moment, where parents will realise how foolish it all is and go off happily co-parenting into the sunset.
What I think WILL happen to these high conflict cases is this: mediation will either not happen or it will not work. One way or another the conflict will continue, because for this type of case the whole thing is driven by grievance not by objectivity. And either the parents will have to find their way through the court process both acting in person, which they will do in a bewildered and frustrated state which will lead to poor decisions and increased conflict. Or they will simply carry on their conflict outside of any managed or moderated environment – on the phone, in the street, on facebook, in front of the children, or by withholding contact or denigrating the other parent. Or both. This is what social workers call “emotional harm” before closing their files because the children are being safeguarded through the mechanism of private law proceedings. Will Local Authorities be able to shed their duty towards children at risk of this kind of emotional harm so easily in future? One suspects not. I think that where previously they have been so used to effectively contracting out their responsibilities to the private law system, Local Authorities will increasingly have to keep a watchful eye and remain involved in order to discharge their statutory duties vis a vis emotional harm.
You may see my Wonka analogy beginning to make sense now. If the private law system fails as a safety mechanism, some other part of the system will feel the pressure. I may be wrong – the leak may spring elsewhere, Local Authorities may simply continue to turn their corporate face away and emotional harm will go unchecked until it emerges in behavioural difficulties or underperformance at school or is played out in difficulties with relationships in adult life – but you can be pretty sure that if the lid is screwed down too tightly on private law proceedings, somewhere else a gasket is eventually going to blow. and it may not just be mine.
These of course are just hypothetical musings…and perhaps they are not just premature but also crackers. Whatever the precise detail of the forthcoming spending review I predict there will be steam coming out of our collective ears by close of business on Wednesday.