Family courts: the vulnerable and the legal aid swamp
Two things have struck me over the past few months, as I write about legal aid and those who are – and mostly are not – entitled to it: first that the very lack of clarity of the legislation which comprises the 2013 scheme denies a right to a fair trial; and that the people it should protect – the vulnerable witness; the victim of domestic violence; the parent who struggles with English; and the forgotten many who struggle with basic literacy as adults – are frequently overlooked.
If clarity be the food of law; play on
Give me excess of it, that, with such clarity,
The appetite for obfuscation shall thus die….
– with apologies to William Shakespeare (Tempest 1:1 l1)
I have written before of the need for clarity in law (see eg https://dbfamilylaw.wordpress.com/2014/04/18/a-luther-for-family-law/). The weight of statutory provision which confronts the applicant – who must in theory understand it to pass the threshold of court application – is truly astonishing. I say ‘astonishing’ without exaggeration. I read the new Act (the bits I needed to) and all the delegated legislation as it came out. Most was new to me; but some – especially the ‘merits criteria’ and means testing rules – were much the same as before.
But remember: I was broadly familiar with some of the detail already; I have 40 years behind me as a lawyer; and have studied legal aid law in a more or less academic way for 25 of those years. I am literally in another legal class from the vast majority of readers; especially the domestic violence victims and vulnerable people we’ll be looking at shortly. And yet at times I struggled: finding how merits fitted with legal help (or did not); where domestic violence was defined; and whether certain types of work would attract civil legal services – all were things which were not worked out easily.
If clarity is food for the legal aid legislation draftsman (to return to my mangling of the Tempest above) – as by definition it should be – then I fear he is not well-fed. Does not his appetite still live nourished in the swamps of 2012/3 delegated legislation? The tangled roots legal aid legislation are eloquent of the opposite of clarity (as the unspoken sub-text of the cases below well show). So, my friends, here is primary legislation; there, thicker and more verdant, schedules to that legislation. Next is the forest of regulations (essential to define merit of a case and means of an applicant) and growths of Lord Chancellor’s Guidance to case workers. All is obfusc on the draftspersons vigorous mill.
Obfusc and a fair trial: a ground for judicial review?
I mention this now, since it seemed to me, as I read the recent legal aid cases of Gudanaviciene and RofW,that one of the most glaring grounds for judicial review – which many lawyers might not think of, instinctively – was that a fair trial was denied because of the simple fact that an applicant couldn’t get to court at all. He or she could not tell easily whether there was a possibility of receiving legal aid. This was the first step to take before even a lawyer would help to issue process. Without that first step: no claim. It is like denying medical treatment (eg for cancer) to anyone whose lungs, breasts or prostate (say) – on the outside – look OK. It takes a cancer specialist to read what is going on under the skin.
Not only must the battered spouse or partner cope with the violence which creates the need for help. The list of what must be penetrated in legal terms to define legal aid borders on the Kafkaesque: First is the variety of schedule and regulations considered by RofW (see below). Next is the law which defines means (eg Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013) and the merit of her case (eg Civil Legal Aid (Merits Criteria) Regulations 2013) – the content of which is far more intimidating than the titles of these regulations (not considered in RofW, which is a mystery). In logic the legislator should assume that all this must be considered before a victim can consult a lawyer (just as I must believe I have a medical complain before I go to a doctor). Rank complexity – or basic lack of clarity – should surely be a ground for declaring legislation like this unlawful?
And if all this fails – and when you, dear applicant, have understood it all – you can check out whether you have a chance of a exceptional case determination; and that is another substantial arena where the fog of law unclarity needs simplification (see Gudanaviciene (above)). For that you’ll need an understanding of human rights jurisprudence which is probably beyond the knowledge of most practising family lawyers; an understanding of why the procedure is so complex in your particular case; and then it’s easy… Seriously, it’s a substantial area, to which I shall retun.
The vulnerable, victims, and allegations of abuse
And, finally, back to victims of domestic violence, children as witnesses alleging abuse, and the variety of people – witnesses, parties etc – who together in a civilised society in a family breakdown system merit protection in and around the court process. The Courts and Tribunals Judiciary (see below) speak of them collectively as ‘vulnerable witnesses’ and children. Where do they fit in the legal aid palimpsest?
Summer’s blaze of family court ‘consultations’ included, amongst three consultation exercises, that of the Vulnerable Witness Working Group: see ‘Interim Report of the Children and Vulnerable Witnesses Working Group – 31 July 2014’ (Courts and Tribunals Judiciary: http://www.judiciary.gov.uk/publications/president-of-the-family-divisions-consultation-interim-report-of-the-children-and-vulnerable-witnesses-working-group-31st-july-2014/ ). An aim of this group was to propose ‘a new mandatory (sic) rule… supplemented by practice directions (PD) and guidance approved by the President’). My response was submitted on 5 October 2014 (https://dbfamilylaw.wordpress.com/2014/10/05/consultation-on-children-and-vulnerable-witnesses-court-proceedings/ ).
One rule (whenever is a rule not ‘mandatory’?) is plainly inadequate. So too is the speed at which the group is working. (At least it should have told us by now that its canvas must be much wider than its ‘interim report’ suggested.) Re K and H shows how important is but one aspect of this substantial subject: of how to protect children as vulnerable witnesses. Parties will be victims of domestic violence, and thus often vulnerable. Others, such as Ms Gudanaviciene, the non-English speaking proposed deportee and mother of a small child (her lack even of English to wade through our law justified an EDC said the Court of Appeal) need protection. The ‘vulnerable witness’ aspect is but one which links the strands of this, still further, aspect of unmet legal need.
Let us assume there really is no mare cash (well not much, save for a broader brush approach to ECD) in the Ministry of Justice legal aid budget, much can still be done to improve the family law system. Clarity of law (once done that should save money: takes less time to read, to understand and to explain to a judge) is one thing. The other is to provide a more rational system – case management, funding and attendance in court – for those who the family court system must protect.
 Under Legal Aid Sentencing and Punishment of Offenders Act 2012
 R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors  EWCA Civ 1622 (Lord Chancellors Guidance to case workers partially unlawful, and ECD under LASPOA s 10(3) and its meaning explained).
 R (ota Rights of Women) v Lord Chancellor and Secretary of State for Justice  EWHC 35 (Admin) (limitations on grant of domestic violence legal aid intra vires the regulation-making powers of the Lord Chancellor); and see Family Law News at http://www.familylaw.co.uk/news_and_comment/domestic-violence-restrictions-on-grant-of-legal-aid#.VM0NS2jF81Y
 I avoid ‘family justice’ as that term has been hijacked by children lawyers
 Re K and H (Children: unrepresented father: cross-examination of child)  EWFC 1 His Honour Judge Bellamy sitting as a Deputy High Court judge (HMCTS to fund an advocate to cross-examine for the court and an unrepresented father, a child who alleged he had abused her); and see Family Law News at http://www.familylaw.co.uk/news_and_comment/family-court-funding-2015#livefyre-comments