19 days and counting ...

Just over a week ago the Ministry of Justice announced that it would fund the Citizens Advice Bureau's Family Law Service at the Royal Courts of Justice to the tune of £90,000 per annum from 1 April 2013.  The CAB Service (previously funded by the LSC) provides advice to unrepresented parties involved in Family Law cases at the Principal Registry of the Family Division.  This clearly raises the question as to what happens in all other Courts throughout England and Wales.  Is an Advice Service being provided to the Principal Registry because they have a greater number of Litigants in Person?  Or is it simply London-centric thinking?  Perhaps a similar level of funding for similar services at all other Courts will become available in coming months? 

Last week, I attended a Mediation Conference where the Minister of State at the Ministry of Justice and Deputy Leader of the House of Lords with responsibility for Legal Aid and Family Justice, Lord McNally was the keynote speaker.  He confirmed that by April 2014, it will be compulsory to attend a Mediation Information Assessment Meeting (MIAM) irrespective of whether you wish to access mediation funding or not.  He talked about mediation becoming the first choice/ default way to resolve family disputes.  In his view, this is a once in a lifetime opportunity for mediators to raise their profile and they should embrace the opportunity.  He considers that the government is doing their bit by not only retaining legal aid for family mediation but an extra £10 million is to be invested in mediation, making a total spend on mediation of £25 million which he emphasised was a sum that had not been and would not be capped. 

Lord McNally believes that the legal aid cuts would have come anyway - apparently they were well underway before the last election - everyone had the view that there was a need for a fundamental rethink.  He said the government has had to make hard choices and there are no soft options but he believes they are doing much to improve the lot for children and families, and mediation is part of this.  Lord McNally appreciates that it may be difficult to alter the general public's current mind set and just because it is difficult does not mean it shouldn't be done.  He talked about taking over responsibility for the changes to the family justice system, saying that as a politician there are only a few occasions in a politician's career that you get to do something that can change the way people live their lives and he believes that being at the forefront of the cultural change that mediation offers is a legacy that he will view with pride. 

Terry Davis of the Legal Services Commission who faced a barrage of questions about the new eligibility criteria for legal aid in relation to mediation and also the evidential requirements that anyone in a domestic abuse situation will need to produce in order to obtain legal aid to cover the cost of advice to deal with children and financial issues. 

Without the assistance of a lawyer, a Client who alleges domestic abuse will need to obtain one of the following -

  • copies of formal Cautions or Court Orders from the relevant Courts, Police or CPS;
  • letters/reports from multi-agency risk assessment agencies;
  • letters or reports from Local Authority Social Services' Departments;
  • letters/reports from health professionals

  all of which need to relate to incidents of domestic abuse or child abuse issues that have occurred within the 24 months immediately preceding any legal aid application. 

It will take someone who is very organised and in control of themselves and their situation to obtain the requisite documentation to enable them to then access Legal Advice.  Will victims of domestic abuse be able to fulfil this role?  Is it not more likely that the Police, Local Authorities or NHS may need to play a greater role in providing the information that will be needed for Clients to access legal aid to obtain legal advice?

If they are willing to attend a MIAM, Mediators may be able to signpost Clients to where they may need to go but what will happen to those people who are too frightened to sit in a room with their ex-partner but for a whole variety of reasons the violence/abuse has not involved the Police or other Organisations. 

The definition of domestic violence that will trigger access to legal aid may have been extended as follows:-

"any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other."

In reality will the Police/Local Authorities/NHS have the resources/time to offer support to people who allege abuse but do not present with any physical manifestation of such abuse? 

Only time will tell whether holes will emerge in the reality of the support for families and children in the midst of crisis.  Mediation is not a panacea and cannot plug all the holes.  Will the Court Office become another emergency service for distressed people in the midst of a family crisis?  Should every Court therefore have a funded advice service for litigants in person? 

Posted on: 21/03/2013

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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