‘I’m a legal aid lawyer to the core and desperately sad that I can’t help as many clients as I could’

DivorceYesterday was a bitter sweet day. It was the final hearing of a Trusts of Land case, where my client was the owner of a property and the claimant was applying for a share as he said he was the beneficial owner. We ultimately got it dismissed as he was bankrupt at the time but it has been a particularly stressful case, primarily because my client has a continuous restraining order against the opponent due to his harassment over the years and it involved special measures. He then sacked his legal team at the absolute last minute, primarily we think because he wanted to intimidate our client by cross-examining her in person – fortunately we never reached that stage.

I was not able to attend the amazing LALYs last week as I had been working so hard on the case and could not get away. I was able to follow it on Twitter though.

Fortunately my client was able to obtain legal aid because of the restraining order.

However, I then realised that this was my final legal aid certificated case. I have been in the law for 30 years this year and have always undertaken legal aid work throughout the years in crime, family, personal injury and the housing and debt work we were able to offer under the green form scheme. I believe clients always received a good service and were able to come to a local solicitor and receive the advice they needed, with the ability to consult counsel if needed.

I have about six ‘legal helps’ that are just finishing where we are finalising consent orders but that is the sum total of my own individual legally aided cases.

I am an accredited specialist with Resolution, my specialities being domestic abuse and private children and I am a Law Society Family Law accredited specialist. My firm was set up in 2005 as a niche family legal aid practice – my partners are child care and child abduction specialists respectively.

We still act for clients in child care and abduction cases and those that qualify for injunctions and for private family case through the Domestic Violence gateway. My assistant deals with injunctions and the DV-related private cases and we did not want to make her redundant by my taking over those cases. I supervise her for these cases.

A final nail in the coffin
So I have started doing more Probate work, I am taking the Society of Trusts and Estate Practitioner exams, not easy at my age to undertake three hour written exams and also going back to my conveyancing work, which fortunately is busier at the moment. However, I am concerned about the Solicitors Regulation Authority (SRA) proposals for professional indemnity insurance and the compensation fund, primarily to not allow lenders to claim against the fund and reduce the insurance limit to £500,000. If that happens then it is likely lenders will want their own firms to act and not have a panel of firms. This could have an adverse effect on the High Street and could be the final nail in the coffin for many firms.

When I, personally and through LAPG, replied to the consultation on the Legal Aid Sentencing and Punishment of Offenders Bill the points were made that if legal aid was removed there would be an increase in litigants in person applying to court themselves with the concomitant pressure on court time. This has happened with a 48% increase in personal applications.

I raised the issue that there was no mechanism to appoint an independent solicitor to cross examine parties in place of an unrepresented party as there is in crime. This could have happened in my case and although my client would have probably been behind a screen she was terrified at the thought and burst into tears at the prospect. This issue was raised recently in D V K and B (Allegations of rape in finding of fact case, mother would be cross examined by alleged rapist).

I am now going to quote from H v L & R. A similar issue arose in H v L & R [2006] EWHC 3099 (Fam) and Wood J said this at paragraph 24 about the prospect of a Judge conducting questioning of the complainant in a case where there was sexual allegations. “…for my part I feel a profound unease at the thought of conducting such an exercise in the family jurisdiction, whilst not regarding it as impossible. If it falls to a judge to conduct the exercise it should do so only in exceptional circumstances.”
I respectfully agree with Wood J and therefore, in January, asked the Legal Aid Agency to think again. As matters now stand, it seems highly unlikely that legal aid will be granted.

There needs to be a procedure, as there is in crime, to allow an independent lawyer to cross examine. If this is not brought in I can envisage clients will just concede even if the result is not in their or their child’s favour.

I know the view of the Government was that parties should always attend mediation first and we always refer clients to mediation wherever appropriate. This is, however, not always the case where there is domestic abuse and often the other party will not engage. As clients no longer have legal help they then feel they have no opportunity than to apply to court and this then escalates the tension between the parties rather than them working together for the benefit of the children.

As parties are not represented there is also the issue that no one can afford to pay for the necessary expert evidence, such as drug tests or surveyor or actuary reports. Although legal help is available for Help with Mediation, the take up over the country is incredibly low, only 28 claims had been made as of March 2014, I only have two and the difficulty with one is that an agreement was reached at Mediation but when we tried to convert it into a Consent Order it was not workable and we had to spend a considerable time discussing with the unrepresented other party as to how this could be worded. As we will only receive £350.00 it is not a financially viable case.

I could go on (and frequently do) about the issues now over men losing contact with their children and the negative impact that has on children and women not receiving their proper financial recompense in divorce, particularly pension claims.

I know clients still qualify for funding but it is a very difficult process to ascertain if they can qualify. My frontline staff have to go through a number of criteria to see if the client could possibly qualify through the domestic violence gateway for funding. Clients are often quite upset that no legal aid is available.

We advise clients of the requirements and that the template letters are directly available from the Ministry of Justice website. However, we tend to have to see the clients to assess their suitability. They invariably do not have the requisite evidence, (despite being requested to bring it in) either gateway or financial, or both and we have to send them away to obtain this then return later to sign up for legal aid.

This interview is not charged for as we feel it inappropriate to charge for advice when the client could potentially qualify for legal help, but this takes up the fee earner’s time when they could be carrying out chargeable work. This interview can take at least an hour then the next one is often at least thirty minutes, and often the clients still do not have the appropriate proof.

It should be pointed out that clients have to provide proof of capital, even if in receipt of passported benefits, such as income support, which is very difficult for our clients to do.

Our legal help case starts has now reduced to an average of five per month, three of which are normally for child care, we used to have an average of 20 per month, for example in 2007 and 2010 we averaged 21 per month. Of the private family law cases the majority are those referred to us from a local refuge where the client has stayed there for more than 24 hours so will qualify under LASPO.

Another impact is that even if we are able to obtain funding for our client the other party is often not represented so we have to deal with them direct. We constantly receive numerous emails a day from litigants in person expecting immediate replies and often these people are highly emotive and angry. In the past their Solicitor would have calmed them down and advised them of the law and procedures to follow. Now there is no advice available and we are not able to give advice to them. My staff are finding it very worrying and it affects their ability to provide a proper service to their clients. I would not say we do anything to antagonise the opponents and try and deal with them in a professional way but they do not appreciate we are acting for our client and have to serve their interests and the court.

If the opponent does not receive a satisfactory response they then threaten us with a report to the Legal Ombudsman (LeO) or the SRA. I sincerely hope the proposals to allow claims from third parties to LeO do not come in as they will be inundated with unmeritorious claims from litigants in person. We even had one sue us as he reckoned we had breached his Data Protection rights so we had to involve our Insurers. Fortunately the claim was ultimately abandoned but not after I spent many unpaid hours dealing with it.

I am a legal aid lawyer to the core and am desperately sad that I am not able to help as many clients as I could in the past. I also feel that the efforts of the legal aid lawyers dealing with the day to day cases should be recognised.

I am concerned that the high profile civil cases and cuts in crime will mean that the family clients who are not obtaining the help they need will be overlooked. I am not sure what the answer is as I know LAPG, the Law Society and Resolution are still actively campaigning but with an election coming maybe we can all use the opportunity to engage with our MPs and prospective MPs about this issue.

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