Family courts face collapse

The family courts were under unprecedented pressure in the month following the introduction of the LASPO cuts which removed legal aid from most family cases, reports Jon Robins. Cafcass, which looks after the interests of children involved in family proceedings, reported that in May there were a total of 5,061 new private law cases ‘representing the highest ever month on record’. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed legal aid for all family cases except where was evidence of domestic violence as of April.

  • Between April and May 2013 Cafcass received a total of 9,398 new private law cases, an increase of 27% from the 7,388 cases received in the same period last year.
  • Over the last year, Cafcass received 45,752 new private law cases, a 9% increase on the 41,813 cases received in 2011-12.

‘We will have to wait and see whether this increase is the beginning of a new trend or if it’s simply a spike resulting from a higher than average number of cases started just prior to the introduction of LASPO on 1 April,’ said a spokesperson for the family lawyers’ group Resolution. ‘If it proves to be a trend, it would be a worrying one that signals bad news for children and families.’

Christina Blacklaws, director of family law with the Co-operative Legal Services and the family lawyers’ representative on the Law Society council, told the Daily Telegraph that there was a danger that some desperate parents might try to take matters into their own hands. ‘The whole system is really creaking at seams and could collapse in on itself,’ she said.

A Resolution member from Suffolk cited a client who woman fled the family home at the end of last month ‘after nasty, sustained domestic abuse on her and her two year old child’. She and her child have been in a refuge since then. ‘The courts are unlikely to grant a non-molestation order as she is now deemed to be in a place of safety and her husband has not contacted her since she fled,’ said a Resolution spokesman.

The mother is in receipt of income support and has medical evidence to support her claims of domestic abuse in line with new requirements under LASPO. The husband has just issued an application for a Prohibited Steps Order, a residence order and a specific issue order for return of child to him. The hearing is due to take place today.

‘Pre-LASPO, this vulnerable individual would have been passported and granted legal aid as she is in receipt of income support. She would have been able to get the legal representation she desperately needs,’ Resolution said.

Now, post-LASPO, even though she is on benefits, she is still subject to capital assessment. Because the mother has been forced to flee the family home, she cannot use what is known as the ‘main dwelling’ exemption. This means that the capital in the jointly owned family home is considered and this takes her over the threshold for capital eligibility. This prevents her from accessing legal aid.

According to Resolution, she cannot face her husband in court today ‘having only just fled from abuse’.

 

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About Jon Robins

Jon is a journalist and has written about the law and justice for the national papers and specialist press for more than 15 years. Jon is a visiting journalism lecturer at Winchester University, a visiting senior fellow in access to justice at the University of Lincoln and patron of Hackney Community Law Centre. He has won the Bar Council’s legal reporter of the year award twice (2015 and 2005). Jon is editor and co-founder of LegalVoice

There are 3 comments

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    The horrific reality of government cuts is that no legal aid is available for any family matter, even defending a care application, unless it involves issues of domestic violence. And as the article highlights even this does not protect the standard, particularly middle class spouse, who flees the matrimonial home.

    Effectively therefore CAFASS has the only publically financed representative in the family courts.

    CAFASS received 5,061 new private law applications, and 965 care application last month. These are untenable figures per se, but in courts dealing with emotional, vulnerable confused litigants in person, it cannot but result in injustice and breach of art 6, 8 human rights for both spouses and parents, and unfair pressure on an increasingly overburdened children’s guardian service.

    A plethora of bodies- magistrates association, children services directors, resolution have feed into lengthy expensive family law reviews, to modernise the family court, culminating in the Children’s and Families Bill . Yet these fundamental issues are not addressed, and escacerbated by a 26 weeks care proceedings limit.
    A group of independent, specialist family lawyers should, subject to means, be made available to all spouses and parents, the care threshold criteria highered, the presumption of child contact reinstated, and ‘no fault’ divorce restricted.
    The public money spent on CAFASS could be used for this, as the courts and adversarial system could then be trusted to protect the children’s interests.

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  2. Avatar

    I fled Narcissitic abuse last year from my ex husband and went to a refuge. My ex husband had his lawyer issue a prohibited steps order claiming I had abducted our son. The judge orderede to return to my former home – owned solely by my ex husband – and return our son to his former primary school the next day – which I could not do as he was legally on role at another school. I either broke the order or broke education law. I could not comply with the order. Three days later I had to appear in court again to answer why I had not complied with his order. I explained but he refused to accept my explanation, and he chose to believe my ex husband when he denied all knowledge of any abuse, claiming it never happened. He refused to believe I fled to the refuge for a legitimate reason and gave me the next two days over the weekend to return to my home. He enforced the order. My ex husband was sitting there with commital papers, ready to have me sent to pride that day if I refused to go back. The judge told me if I refused then he would have those papers processed there and then and I would not be leaving the court. I had no choice but to return and I am now here to be tortured by my ex husband at his leisure. I had no access to legal representation because it took nine months to get my substantive legal aid certificate, and even though I am on ESA due to bring declared unfit for work as I have PTSD, I still have to pay £165 per month toward that certificate for the duration of the court case. He is also trying to gain permanent residence if our son. My basic human rights were not recognised and I was subjected to manipulation, coercion, discrimination and blackmail by a district judge in his own court. I have been the victim of a gross miscarriage of justice and the judge failed to follow the proper procedures when the issue and an allegation of domestic abuse was made. I am now having to fight for my rights and the rights of my son. It is an appalling state of affairs. The Family Law system is a joke.

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