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David Hodson on International Family Law: Legal Aid cuts to the heart of international family law justice

Date:24 AUG 2010

David HodsonThe latest cuts in legal aid, public funding, in England comes on top of dramatic changes announced in 2009. The consequence is to reduce drastically the availability of specialist solicitors able and willing to help members of the public, in England and abroad, needing legal representation in English family law proceedings. As the UK enters a period of unprecedented cuts in public services to overcome the economic deficit, the outlook is not good for justice and access to justice.

Yet England has often led the way over the past 60 years in its commitment to publicly funded legal representation. It was established by the Legal Aid Act 1949, the justice part of the welfare state Trinity with health and education. Other countries followed with similar schemes although some backed out quickly because of the cost. England has been backpedalling over the past 15 years so that there are now legal aid deserts across the country where it is difficult to find a legal aid lawyer. Finding a legal aid lawyer with good knowledge of international aspects is very hard.

In England, legal aid work is undertaken by lawyers in private practice, paid by the government. Meanwhile, other countries have adopted different schemes. In some countries, the legal aid work is undertaken by government or public bodies, outside of private practice. Some smaller countries require all lawyers to undertake some publicly funded work; often resulting in law firms "selling" their responsibility in this respect to other law firms. Some countries impose a cap on what a lawyer can charge in legal aid type cases. Some countries have voluntary pro bono schemes.

Although it is arguably for each country to decide its own arrangements according to its budget and legal professions, with the historic impact only on its nationals, all changes when international families seek cross-border assistance. The international conventions are good: the EU Legal Aid Directive 2003/8/EC, 27 January 2003, and the Strasbourg European Agreement on the Transmission of Applications for Legal Aid, 27 January 1977. But they are no use whatsoever when there is no effective availability of legal aid lawyers in the countries in which international families seek assistance.

The past decade or so has seen international family law break out of its super wealthy gated community. Access to specialist international family law advice is now needed for those unable to afford representation; whether regarding their children, to obtain financial remedies or suitable protections. The quality of a country is found not in its strength of arms but in its strength of justice and fairness. The inadequacy of access to legal representation no longer affects just a country's nationals: it now affects all international families.

Family lawyers across the world with a concern for justice and fairness for international families and their children need to stand up and be counted in arguing for appropriate resources for access to representation and justice, not only in our own countries but in other countries around the world.

David Hodson is a Consultant at The International Family Law Group. He acts in complex family law cases, often with an international element. 

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on dh@davidhodson.com.

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