FAMILY LAW, LEGAL AID – AND A BRAVE NEW WORLD FOR MEDIATION

Silence of the family law legal aid lambs

The three headlines below appeared one above the other in the e-version of Law Society’s Gazette on Christmas Eve. In combination they say a lot for the state of family law – and perhaps of family lawyer’s leadership (such as the Law Society, Resolution and Family Law Bar Association) – at the start of 2015:

• ‘Grayling faces new year test over legal aid’ (the first headline) relates to the achievement of the criminal lawyers to challenge and, by oral interim hearing (an achievement in itself) to seek to persuade the High Court to suspend the tender process: a decision is expected on 30 December 2014.

• ‘Exceptional case legal aid’ relates to R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 and the clutch of immigration cases which successfully – and privately (ie no help from representative bodies) challenged the Lord Chancellor’s Guidance on exceptional case determinations (ECD) under Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPOA) s 10(3).

• And then ‘Representation slumps in family law’. That legal aid has been reduced so substantially was to be expected; but how, in truth, has it come to be so bad for financially eligible family law clients and their would-be lawyers; and how is it that representative bodies have done so little of real assistance to help their members and their members’ clients? Why, for example, is there no family law equivalent – yet – of Gudanaviciene?

Resolution’s resolution of legal aid negotiations

In relation to the headlines above, the following points arise:

(1) Gudanaviciene and ECD – so yes, where was a Resolution (or Law Society) challenge alongside Gudanaviciene (though Law Society was there for us when JG (see below) was in issue)? ECD affects family law cases quite as much as immigration cases; yet where is Resolution teaching on human rights, Law Society support for court challenge, or FLBA advocacy to rubbish the unlawfulness of the Lord Chancellor’s Guidance? If it is there, I have not heard about it. Family law cases were successfully applied for in 8 ECD cases over the early period of LASPOA 2012. Is that not testimony to the pusillanimity of many family law legal aid lawyers and their representative bodies?

(2) Statutory charge – one of the sillier 2012/3 ‘reforms’ to legal aid was that Ministry of Justice jettisoned the vast majority of its banking arm, which at times of very low interest rates was netting the tax-payer a cool 8% per annum, a massive lift on what you or I would get at Santander (even allowing for the cost of administering it). We all knew that much legal aid was only a loan, waiting for the statutory charge to bite and the tax-payer to cash-in its 8% per annum simple interest. And any associated private law children and domestic violence cases would be tacked on. I wonder what the family lawyer negotiators said to the Ministry of Justice about that at the time; and what net loss there has been to the Ministry of Justice from losing (a) that nice little uplift on interest charges and (b) the statutorily charged bits of litigation (eg child arrangements fights) which will not now be charged because financial remedy work is not legally aided.

(3) Challenge to the Lord Chancellor – on any of the above subjects, or indeed any other, Resolution has taken no active part. (Unlike the Law Society, Resolution took no open part in the family law legal aid case of JG v Lord Chancellor and ors [2014] EWCA Civ 656 so far as I know: even I sent some notes on a couple of points to the silk used by Law Society, at his request). I would guess that many of its legal aid members – and many more would have legal aid, if a statutory charge challenge had been mounted – would have liked Resolution to take the fight to the Government; but if your main negotiators are mediator this will leave your negotiations in a compromised position; one hand at least strapped behind the collective back.

The legal services order gap

For, so it is: one of Resolution’s main negotiators was Dave Emmerson OBE (he accepted a gong from the Government, and sought to represent lawyers against its latter emanation Ministry of Justice). I taught legal aid with Dave just after LASPOA came in (in May 2012). He told us all – to camera – that he thought LASPOA had finally introduced the interim lump sum in family proceedings (originally in a schedule to Family Law Act 1996: now but not then repealled). I later asked Dave where he found this provision. Silence.

I suspect he meant the new legal services orders in LASPOA ss 49-54 which, for present purposes, introduce a new s 22ZA into Matrimonial Causes Act 1973 to enable certain applicants in financial remedy proceedings to apply to the court for the other party to pay part or all of their costs. (The common law provides an equivalent provision in the form of costs allowances in other forms of family proceedings.) As far as I know none of the usual suspects above – Resolution, Law Society etc – provided any immediate education or other help to its members on the legal services order and costs allowances subject, certainly as it was being introduced in April 2013. (By that time most of Resolution National Committee had still not found out that the family court had then reached the statute book: per Crime and Courts Act 2013 Sch 10.)

Resolution and the Law Society (and, the Bar Council, I am sure) negotiated – no doubt with gusto, nay ‘resolution’ – in the run-up to LASPOA. But, there is surely a real conflict in the same organisations – especially the mediation-obsessed Resolution – espousing the parallel mediation route; whilst simultaneously – as must be the inevitable consequence – rejecting the litigation route. For litigation is a route which many of its members and their clients must tread. I doubt this conflict has been, in any realistic way, debated by – for example – the Law Society or Resolution (it did not crop up at Resolution’s 2014 AGM).

Mediation in 2015: nothing to do with legal aid or Ministry of Justice

I appreciate that much of Resolution’s efforts are to ‘#keepitoutofcourt’: to stop its member’s clients going to court. However, facts must be faced:

• There is a real issue about lawyer litigators (like me and lots of other Resolution members) working too closely, in formal business terms, with mediators. The conflict inherent in having mediators and litigators as partners in the same firm must be debated, at least.
• The failure of Resolution to come near its strap-line – ‘First for family law’ (ie the ‘law bit’) – would be laughable were it not so serious. Most of Resolution’s golden fresh eggs are hatched out on mediation projects; yet its first responsibility – it could be argued – should be to its law and court roots. The rule of family law suffers as legal aid dwindles; yet the Resolution chair adopts an approach to the law of ‘privilege and confidentiality “for dummies” (sic: see Resolution review of November 2013)’. On law Resolution members said to be ‘dummies’.
• Not every person whose family breaks down manages to settle their case out of court.

‘First for family LAW’

And so this note comes full circle. Mediation is nothing directly to do with the courts (save with consent orders in marriage etc cases). It is to do with family break-down which may – just may – involve court and litigation. Yet where family breakdown cannot be resolved by agreement – domestic abuse may make this difficult in a substantial proportion of cases, for example – court, certainly at the outset, may be inevitable. Then the ‘#keepitoutofcourt’ concept, to many court customers, sounds as if it comes from another world.

And in that real litigation world, real law, and the rule of law, and human rights and EDCs and all the inconvenient aspects of life which litigation has to pick up, come into sharp focus. ‘Black-letter’ law – a term derided by many Resolution members – becomes what keeps people protected (the lawyer’s true role; and why he or she must know the law) from wrong-doing by public authorities and by other parties to their family breakdown process.

In logic mediation and litigation must be kept separate; though like prophylactic and invasive medical treatment the mutual understanding of their practitioners is important. In 1978 when we first went to see the then Solicitor General, we though conciliation – as mediation was then called – would be state-funded, probably by the Home Office (divorce court welfare was part of probation in those days: there was no Ministry of Justice then and the Lord Chancellor had no budget to speak of). And yes, there was reckoned to be a strong law/court aspect to mediation then; though the thrust for implementation of Finer (Report of the Committee on One-Parent Families July 1974 Cmnd 5629 chaired by Sir Morris Finer) came at first mostly from social workers not lawyers.

In 2015, 40 years after Finer, mediation must be parallel, not parasitic. The complementary roles of mediation and of litigation must be clearly defined; and generally mediation – in all real senses – should surely be prior? If mediation is so often in-house to lawyers – that is, under the same professional roof – separation of the distinct family breakdown roles will be difficult.

Parallel roles, separate funding

And in 2015, who really sees sense in mediation as the poor relation, and being umbilically linked to courts and litigation, or in any way funded, by the Ministry of Justice? Who, in logic (as opposed to tired old faut de mieux inertia) sees mediation as anything to do with courts and HMCTS and the Lord Chancellor? Is that not – in truth – a contradiction of what mediation seeks to achieve? It is a little like trying to eradicate smoking; but giving medical care for former smokers to the tobacco industry (not the most happy analogy; but I hope it illustrates the point?).

In the brave new lawyer-free – but law court parallel – world which it demands, mediation should have nothing to do with the tired old Ministry of Justice. And it should have nothing directly to do – if conflict rules apply – with lawyers’ practices and their important, but separate, litigation worlds (save a full and educated understanding of that world; but that is a subject for another day).

Legal aid, support for a real rule of family law and tax-payer banking measures (where property is in issue) will remain in the litigation world (the ‘telegrams and anger’ world, where mediation does the ‘only connect’ of Howards’ End: EM Forster). The world of courts and the Ministry of Justice and the newly politicised semi-literate Lord Chancellor is not a world for mediators. And negotiations for legal aid will be by people – like the criminal lawyers – who are willing to point a writ (well, a judicial review claim form) at the Lord Chancellor rather than allowing his and his department’s political voraciousness (Grayling is an ambitious political pole-cat, in the Tebbit mould) to exclude them.

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