Tuesday, November 16, 2010

What now for Sandra?

As I'm sure the reader is now aware, the Government has published its Proposals for the Reform of Legal Aid in England and Wales, and they do not make good reading for anyone with an interest in access to family justice. In particular, it is proposed that there will be no legal aid for ancillary relief or private law children matters, save where there is domestic violence.

It seems that the Government has listened to the crass Daily Mail-esque Why should taxpayers' money be used for someone to get divorced just because they don't want to work at their marriage? brigade. That, unfortunately, is a cruel over-simplification. Most people do not want their marriages to fail, and they do not want to have to rely on the state for funding to sort out the mess when they do fail. It is just a position that they find themselves in - no one wants to go to the courts. To illustrate, I will give a not untypical example:

Sandra Clarke had been married for twenty-five years. She had three children, the youngest of which had just finished education. Throughout the marriage she stayed at home and brought up the children. As a result, she has no career, and just works part-time as a school dinner lady. Her husband Ken, on the other hand, runs a business that Sandra believes is doing very well, although she has no knowledge of the running of the business.

Sandra thought that life was good, but then came a bolt from the blue when Ken announced that he had formed a relationship with another woman, and that he wanted a divorce. From there, Ken began to get increasingly nasty: he refused to give Sandra any maintenance, he refused to go to mediation, and he refused to make full disclosure of his finances (Sandra was sure he was hiding substantial sums of money).

Then Sandra started getting threatening letters from Ken's solicitor. Sandra is at her wit's end; she doesn't know what to do, she can't afford a lawyer, and she is scared for her future.

12 comments:

  1. I see the problem, John. Without legally aided lawyers to promote these cheap sexist stereotypes the sky will certainly fall in.

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  2. What is the matter with you fathers' rights people? Do you think you are the only people who are hard done by? I would have thought it was obvious, but I will explain it anyway: Sandra is just one hypothetical example. There are many others who will suffer if they can't get legal aid and yes, that includes husbands and fathers.

    And before anyone suggests it, I am not a legal aid lawyer. In fact, I am no longer practising. I therefore have no vested interest in legal aid.

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  3. A good step forward.

    Legal Aid lawyers should not be funded by tax payers to fight battles on behalf of separating parents.

    Legal Aid has no place in Private Law, constantly as present being used to assist parents to stop/minimise children having a relationship with the other loving, caring parent.

    It has no place either in prolonging battles in financial proceedings.

    The serious concern is that DV allegations will snowball now that is the only criteria to achieve Legal Aid. With no sanctions for false allegations in family law Parties will use this even more than presently to try to gain advantage.

    The solution is to have all allegations regarding DV heard solely in Criminal Proceedings where evidence is used to produce judgments. Rather than who the Judge likes or the Judge's own personal bias's and prejudices behind closed doors as in Private Law. There are also sanction in Criminal Law for false allegations.

    A good day for common sense and saving unhappy participants in the process many tens of thousands of unnecessary lawyer fees.

    P.S. In reality Sandra would end up with far less if she had access to Legal Aid, as any assets would have been spent on Ken's Lawyers and paying back Sandra's Legal Aid fees.

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  4. Dear Anonymous,

    You are talking complete rubbish. Go back to reading the Daily Mail.

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  5. Dear John
    I thought your case study excellent as it very concisely sets out a problem that will face many. I can think of only two answers for Sandra: 1. she will have to apply for maintenance etc. as a LiP or 2. she should have signed a pre-nup. I don't think I have to spell out the practical problems of both of these. Let's hope the National Assistance Act 1948 has not been repealed when she becomes destitute.

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  6. John

    They are going to have to simplify the ancillary relief process so that litigants in person can actually start and process a case themselves for starters.

    Parties that refuse to undergo mediation should be financially punished and harshly, they will soon learn to compromise if it will hit them in their wallet.

    Perhaps then AR cases that do not mediate to a conclusion should go before specially trained Judges with specially trained clerks who can give appropriate advice.

    Or each court could have 2-3 full time lawyers in house who can almost be like duty solcitiors for LIP cases. Possibly a bit simplistic but worth considering and cheaper than paying private practice lawyers?

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  7. Thanks Julie and Mark for those comments. There is certainly much to consider before these proposals are implemented.

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  8. so what is to happen if:
    1)LiP goes to court and because they don't understand matters properly and can't afford any help because all the assets are with the other partner, gets royally shafted
    2)LiP then seeks a remedy because their art6/8 rights have been breached without any weighing of proportionality?
    3) and then 200 more come up with the same argument.

    not that i would personally want to be one of the 'test' cases.

    and would the same issue not start to come up with those who suffer non-life-threatening disrepair, or eviction that was deemed not likely to result in homelessness?

    of course one argument is that the closed shop and high rates of traditional representation is what is stopping people getting help from those who may know what they are doing but have no rights of audience, so start allowing unlimited representation. maybe that would get certain areas of our profession off their corporate arses and out on the march (or more realistically putting in a quiet phone call to people who can change things)

    just thinkin out loud here. it's like a kinda legal scat session...

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  9. Thanks for that, SW. As I said earlier, there's a lot to consider!

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  10. but it seems that one thing nobody will consider is a small levy on the turnover of every legal business that could be used to fund legal aid. a kind of insurance premium tax gone legal.
    it's simple, would cost bugger all to implement and would be paid by those who can afford it to provide services directly for those who can't. what's not to like? and many of the firms who would pay most are those who help the legal aid/pro bono axis keep going by providing staff free for drop-ins etc. they couldn't possibly object given their support for the objective...

    i haven't heard the law society or the bar council suggesting it though. funny, that.

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  11. Hmm, interesting idea, but I can't see it catching on somehow!

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  12. As usual nobody remembers the statutory charge--the state in many cases gets its money back,and that includes all work on the same legal aid certificate,property related or not.There is an exemption if you settle in mediation or within "legal help",and a removal of that exemption would pull in a lot of extra cash at a stroke.
    It is a view one sees expressed that hostile parents,denied the oxygen of legal aid,would not be able to run contact cases based on specious domestic violence allegations.
    I suspect it would not happen like that.The hostile parent will still dig in their heels,and the onus will still be on the aggrieved parent to do something about it.Mediation may be compulsory [although I do not know how in practice it can be compelled] but the determinedly difficult parent will just sit it out.
    The parent who is denied contact will still have to go to court--who else is going to make a decision if the parents cannot agree? The mediator cannot.
    In any event it looks like domestic violence is going to remain an exception to the general withdrawal from scope...which does raise the spectre of this card being played more frequently if it is seen as a route to funding.

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