The Fight Against LASPO Continues

Despite The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) having gained Royal Assent on 1 May this year, legal groups have vowed to press on with their fight against the legal aid cuts.

Legal Action Group (LAG) director Steve Hynes said campaign work could focus on s 92 of LASPO, which gives the government discretion to bring areas of the law back into scope. It could be used, for example, to re-instate legal aid for family law if the family courts were unable to cope. Hynes says, “It is a misconceived and unjust piece of legislation and we will be continuing to campaign against it.” He says LAG plans to “make it an election issue” for the 2015 general election.

Lord Bach, the peer who led Labour’s opposition to LASPO, stepped down as shadow legal aid minister just a couple of days before the measure received royal assent. He condemned the act, which seeks to save £350m a year by cutting legal aid scope and eligibility, as “outrageous legislation”’ that will harm the “disabled, poor and vulnerable, and those least able to defend themselves”.

The act removes legal aid for vast areas of law, including most private family work, welfare benefits, housing, debt, employment and clinical negligence. In passionate speeches against the bill, Bach called the cuts, “ludicrous”, “counter-productive”, “immoral” and “wicked”.

Bach took to social media site Twitter to campaign against the bill, styling himself with the appropriate handle @FightBach. He can barely disguise his anger at the way the cuts have been made, saying, “If it was done at a time of plenty it would be bad enough, but to be done at a time of austerity is absolutely shocking”. What is particularly insidious about the legislation, he says, is that it works to the government’s advantage, denying people the chance to get the help they need to challenge decisions made by arms of the state.

With the passing of the act, Bach says the British justice system, admired throughout the world, has lost something “very precious”, by denying its open citizens access to justice. “It’s all very well and a good thing having Russian multi-millionaires fighting their cases in London courts, but what a contrast to taking out of our justice system the poorest and the most vulnerable”.

The government lost 14 votes in the House of Lords, the second biggest rebellion in parliamentary history. Lord Bach commends those within parliament and campaigners outside who fought to oppose the bill, praising the Law Society’s ‘first class’ campaign. He pays particular tribute to his colleague, Lady Scotland, for her efforts to ensure that legal aid remained available for more victims of domestic violence than the bill originally covered.

With the removal of funding for social welfare law, Bach is concerned about the future of law centres and Citizens Advice. He laments, “You’ll find that many will close down or take on different forms than they have now”.

Pledging his support, he says: ‘The not-for-profit sector is entitled to do all it can to survive the next few years, until hopefully happier times come again. If that involves them doing things they wouldn’t really want to do, but so they can stay alive and help the people, they will have my personal support”.

Likewise, he recognises the work done by legal aid solicitors in private practice and accepts that the bill will make it hard for some to continue. “It’ll be a crying shame if they find themselves unable to do this work. They too must find ways to survive by cross subsidy or whatever.”

Lord Bach says of himself, “I’m a dangerous person - I’m a convert to social welfare law,” admitting only a ‘negligible’ awareness of social welfare law while he was a practicing barrister himself. “It was only when coming into the job that I realised how crucial it is”.

His epiphany, he says, came after being given “a really hard time” at the Law Centres’ Federation annual meeting in Birmingham. More seriously, he adds, “It was just seeing the kind of work done on really small amounts of legal aid money to change people’s lives. That’s what changed me. After that I was absolutely convinced that if you were going to have a decent legal aid system you need a proper component that looked after civil legal aid”.

Bach says he intended to leave the front bench some time ago, but was determined not to go before this bill made its way through parliament. From now on he says, he hopes to play some part in working with the not for profit sector and with legal aid solicitors, to see how they can survive for the next few years, as well as helping his party build up an enduring social welfare law policy.

No More Legal Aid? - Family lawyers warn of the devastating impact of legal aid changes

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) is now on the statute books, having gained Royal Assent on 1 May this year.

As a consequence, Legal Aid will cease to be available for many areas of family and civil law from April 2013.

At the end of last year, the family lawyers’ group, Resolution, surveyed its 6000 members who undertake legal aid work to discover the true impact of the proposals on families and children. The vast majority (87%) said that LASPO would mean that less than 25% of people they currently help would still qualify for legal aid.

The social implications are considerable: the survey also found that 57% believe a parent risks losing contact with their child in at least half of their cases. Based on the surveyed lawyers alone, this represents well over 4,000 children.

LASPO would also withdraw legal aid from many parents trying to get back children who have been abducted within the UK, even though 91% of those surveyed believe there is a risk of abduction in at least some of their cases.

“It is clear that the Government’s legal aid cuts could bring devastating consequences. Many of those currently eligible for legal aid would seriously struggle to obtain the legal advice and support that could ensure that they continue to see their children after a difficult separation”, said David Allison, Chair of Resolution.

“The changes also risk increasing the nation’s benefits bill. Many of our members say that the majority of their clients would not know what financial settlement they are entitled to, which could see them left dependent on the welfare state and benefits."

“Resolution is committed to the constructive resolution of issues arising from separation, through options such as mediation, and the organisation welcomes the Government’s desire to see fewer family cases going through the court system. However, there needs to be support for those for whom mediation is inappropriate, which, according to the survey, could be in as many as 40% of cases."

“We are concerned that, by focusing so heavily on mediation, the Government will punish those for whom it simply won’t work through no fault of their own – for example, if they have an abusive or uncooperative partner.”

The inevitable increase in people representing themselves in court (known as litigants in person) will add even more pressure on a court system that is facing the closure of 40% of courts and the loss of 15,000 jobs. In the experience of Resolution’s members, cases take longer when one party is representing themselves – nearly half (48%) said it takes more than twice as long.

A New Face at Family Law Consultancy

FLC welcomes new member of staff, Laura Wilson, to the team this month. Laura has been with the firm for a while in a temporary position, but we are pleased to say that she is now joining us as a permanent member of staff.

Laura’s role as a legal secretary and office assistant is an invaluable one in helping us take good care of our clients.  We hope she will continue to enjoy being part of the busy FLC team! 

CSA to charge single parents

The government is proposing to charge single parents who seek help from the CSA (Child Support Agency) to obtain maintenance for their children from the other parent.

On 1 February, the House of Commons voted to overturn a House of Lords’ amendment to the Welfare Reform Bill which was intended to prevent single parents being charged for child maintenance services, where they have no alternative but to use the statutory system to get financial support from the other parent. This is despite the fact that the amendment was overwhelmingly supported by the House of Lords, with 270 votes in favour of the amendment and just 128 against, inflicting the biggest defeat on the government since the election. 

During the debate, DWP Minister, Maria Miller, announced that the government would set the upfront application fee, which is payable by parents with care who seek the CSA’s help to obtain child maintenance, at £20 for all applicants. Originally, the government was proposing that the fee be £100, or £50 for those on benefits. This reduction is small comfort to those parents left with no option but to use the CSA, however, as they will still lose up to 12% of all payments collected by the CSA, and which are of course supposed to be for the benefit of their children

Kim Fellowes, who chairs the Child Support Committee of the family lawyers’ group, Resolution, said,

“There will be no incentive for a difficult non-resident parent to make a fair agreement – or any agreement at all – if they know their former partner cannot afford the CSA fees. For many single parents, the costs involved represent a significant sum of money, which means, coupled with the 7-12% collection fee, there is a real risk that they will lose what they are entitled to.

The CSA was designed to ensure non-resident parents were made to face up to their responsibilities; at the moment, there is a real chance that the government, despite its rhetoric, will let them off the hook.”

But Iain Duncan Smith, the work and pensions secretary, told the Andrew Marr show that the current system led to parents being "almost forced to be at each other's throats," and argued that the charges would lead to disputes over child maintenance being settled out of courts more often.

"If you have a relatively small charge, what happens is that people will think about it," said Duncan Smith, insisting that the proposals would be, "better for the children."

Whilst most other amendments to the Bill were passed by relatively small margins in the Lords, the CSA amendment to do away with the charges was overwhelmingly passed. Immediately after those votes, however, senior ministers in the Commons used a procedural committee to declare the Lords’ amendments invalid, relying on the somewhat archaic convention of “financial privilege”, which states that the Lords may not rule on financial matters.

Parliamentary convention has long stated that the Lords do not deliberate on ‘money’ Bills, such as the Budget, but such legislation is never introduced to the Lords in the first place.

What the government is doing here is declaring that the Welfare Reform Bill has financial implications which render the Lords exempt at this critical stage in proceedings. The most obvious question is why ministers have taken this view now, rather than months ago, at the first stages of the Bill.

It is inexplicable that the government should introduce a Bill to Parliament with the intention of it being considered by both Houses, only for it to declare the Bill beyond the auspices of the Lords at this relatively late stage.

Whether the Lords behind the key amendments to the Bill will be able to mount a cohesive defence against this is presently unclear, but it seems that the whole process could end up in a judicial review.

It is an issue of some magnitude; if the break with precedent is deemed to be legitimate, it could have implications for other major government bills going through the Lords, including the legal aid and NHS reform Bills, both of which are highly controversial.

We therefore eagerly await the Lords’ response to the government's declaration of financial privilege. 

Family Law Consultancy expands fixed fee and online services

For several years now, FLC has offered clients the option of paying a fixed fee for their divorce. Having found that this works well for our clients, we have expanded our fixed fee case options across all of our services, and we now hope to offer the vast majority of our clients the option of a fixed fee, whatever the nature of their case.

We believe that we are currently one of only a very few firms in the country offering the option of fixed fees across the full range of services. FLC Director, Robin Wide, says,

“It is about responding to client needs and that means being able to offer more certainty about costs. The majority of our clients, understandably, want to know how much their case will cost, so that they can manage their finances. We believe the option of a fixed fee provides reassurance at a time of great emotional upheaval.

We are also now offering fixed fee online services. Presently, the service covers online divorce, but we are looking to develop it to cover other types of case as well.”

To help clients budget, FLC also allows payment for most fixed fee cases to be made in spread installments and by standing order.

For further details, please click fixed feeoptions or online services.

FLC proud sponsors of St Andrews FC

Family Law Consultancy Ltd are proud to sponsor St Andrews FC. Director Robin Wide is also a member of the executive committtee at the club in the role of Club Welfare officer.

Prenups almost legally binding !

The long awaited judgment in the Radmacher appeal has finally been delivered and provides much food for thought and material for further debate.

The bottom line is that the appeal against the decision of the Court of Appeal has been dismissed by a majority of the members of the Supreme Court (8 out of 9). 

The essential (and unsuccessful) basis of the appeal had been an assertion that the Court of Appeal had, in the particular circumstances, attached weight (or too much weight) to the existence of a pre-nuptial agreement between the parties.

The essential point of principle now established of the judgment of seven members of the majority (to which Lord Mance added a separate judgment), is namely:

The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.

That principle sounds very much like a rebuttable presumption that nuptial agreements will be binding, and goes further than the previous approach which was to the effect that in all of the circumstances of a particular case the existence of a nuptial agreement may have a magnetic force and prove determinative. 

The Supreme Court has certainly now said that a nuptial agreement cannot be allowed to prejudice the reasonable requirements of any children of the family, but could the otherwise unmet financial needs of one of the divorcing parties ever mean that "it would not be fair to hold the parties to their agreement"? 

It is also of note that the principle applies to all nuptial agreements, whether pre-nuptial, or post-nuptial, and the majority of the members of the court have rejected the distinctions drawn by the Privy Council in MacLeod in that regard.

Some limited and fairly bland guidance is given as to "the difficult question of the circumstances in which it will not be fair to hold the parties to their agreement", and it is said that "This will necessarily depend on the facts of the particular case, and it would not be desirable to lay down rules that would fetter the flexibility that the court requires to reach a fair result".  However, it might be thought that the principle now laid down by their Lordships has already gone some way towards fettering the flexibility of the court. 

It may be said inhibitions on flexibility are justified by the desirable aim of providing predictability, but even now there is no absolute predictability, because of the apparent flexibility of the "get out" considerations.  Indeed, when discussing the problem of unforeseen and unforeseeable  changes the majority decision indicates that such factors may in a given case make it unfair to hold the parties to their agreement, and that the longer the marriage has lasted, the more likely it is that this will be the case. 

The justification given for the importance to be attached to nuptial agreements is that "there should be respect for personal autonomy", but that may be thought to be less than entirely convincing in the context of a non-commercial environment where it will be impossible to predict the future and where there may be real inequality of bargaining power (emotional and otherwise).  One can foresee arguments in future cases on the basis that the agreement was not "freely entered into" and/or that one party did not have a "full appreciation" of the implications of the agreement.  All of this seems to be acknowledged in the majority decision.

Of course it may be possible to counter such arguments to some extent by measures such as full advance disclosure of financial resources and independent legal advice (said to be "obviously desirable"), but it seems that it will not necessarily be unfair to hold parties to an agreement in the absence of such features – all will depend on the particular circumstances, such as whether non-disclosure was really "material", or whether the other party was "indifferent" to the detailed particulars, and whether each party was in fact fully aware of all the implications of the agreement.

All of the matters discussed in the judgment as factors that may support or undermine any given nuptial agreement make complete sense, but given the multitude of such features and the necessarily imprecise guidance given in relation to them, why, it might be asked, are any presumptions necessary? 

Ultimately, a nuptial agreement will have importance in any financial dispute on divorce, but it cannot be guaranteed to provide the ultimate answer, or avoid litigation in any given case.