19 November 2010

The purpose of the Legal Aid and Advice Act 1948 was "to make legal aid and advice in England & Wales... more readily available for persons of small or moderate means".

The proposed reforms of the Legal Aid system published by the Ministry of Justice on Monday may well reverse the fundamental principle of access to justice enacted 60 years ago by the architects of the welfare state.

In the family law arena, a significant number of separating couples will have nowhere to turn for legal advice. Legal aid will continue to be available for forced marriage and domestic violence cases, but not for disputes between parents over the care arrangements for their children or to resolve financial disputes following divorce or separation.

The comments made by Jonathan Djanogly, the Justice Minister, seem to suggest these proposals have as much to do with political ideology as with purely budgetary considerations. The fact is, he claims, people are too often willing to hand over their personal problems to the state. This may well be true. Over the years, in the absence of any alternative, the solicitors' office has become the first port of call for separating couples with litigation inevitably ensuing.

Turning back the tide of family litigation requires imagination and, I'm afraid, investment. Withdrawing access for justice for the most vulnerable and offering mediation as the only dispute resolution mechanism is simply not the answer. In the absence of any better alternatives, family litigation will remain the norm.

If these proposals are voted through there will be many instances where one party to a dispute has the resources to fund their own legal representation (and litigation) whilst the other has not. It makes a mockery of justice to have so uneven a playing field.

There will, undoubtedly, be many more couples who decide to take their chances and litigate without the benefit of any legal advice or assistance.

The courts service is already under-staffed and under-resourced. An increase in the number of applications made by unrepresented parties will have an entirely predictable adverse effect on the ability of the courts to function effectively. The removal of legal representation from many family cases will only serve to prolong cases and lead to more appeals.

As cuts in other budgets begin to take their effect, it is likely that the number of people that will be affected by the removal of Legal Aid will rise.

The age of austerity was supposed to be a burden shared by society. It seems increasingly likely, however, that the burden will be heaviest for the most vulnerable.

Sandra Davis is a Partner and Head of Family at Mishcon de Reya. She is a member of the firm's management board, a Fellow of the International Academy of Matrimonial Lawyers, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor's Child Abduction Panel. In 2009 she was shortlisted in the Citywealth Magic Circle Awards as a Leading Lawyer.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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