Saturday, February 06, 2010

Fun and games ahead for family legal aid


This week Legal Aid Minister Willy Bach announced that the government will tighten the rules for civil legal aid, with the aim of ensuring "that fraudsters are uncovered at an early stage". One of the changes will mean that before legal aid is granted in a divorce or child contact dispute, the other party to the dispute "will be given an opportunity to provide evidence if the applicant is financially ineligible for legal aid".

Oh, this will really be fun. Not only will it inevitably cause further delays while one party waits for their legal aid application to be processed, it will no doubt be seized upon by those intent on doing everything they can to deny the other party the advantage of legal aid. After all, having legal aid can be a serious advantage in many cases, where the other party's means are too much for them to be eligible for legal aid and too little for them to afford full private representation: the party who has legal aid can run up legal costs with impunity, especially if they have no contribution to pay and the legal aid charge will not apply, as in children disputes. In the worst case, this can be just like the scenario where one party has unlimited resources, and can therefore escalate the costs to price the other party out of the litigation.

So, we can look forward to ex-partners of legal aid applicants bombarding the Legal Services Commission with details of 'hidden' bank accounts, surreptitious earnings and assets squirrelled away. In fact, entire ancillary relief applications could play out in the communications between the parties and the LSC. This, of course, will not only add massively to the delay but will also add massively to the animosity between the parties - but don't worry, the parties will still be willing to resolve their dispute through mediation, that flagship of government reform to the family justice system. My arse they will.

As the MoJ points out, it has always been possible for the other party to inform the LSC that they have evidence to suggest that the legally-aided party may not in fact be eligible. I recall this scenario occurring on a few occasions during my career, both when I was acting for the legally-aide party and when I was acting for the other party. However, such challenges were made after legal aid had been granted (often long after), and my experience was more often than not that the LSC (or their predecessors) were not particularly interested.

The new rules will not apply to domestic violence cases or other emergency applications, but I can envisage many instances where the party applying for legal aid will be put at a serious disadvantage by the delay, and will very possibly have to represent themselves in the early stages of any court proceedings. Still, that will save the legal aid budget a fair bit - after all, saving money is the whole point of these changes.

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