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Lucy Rodgers discusses if divorce law is all the same

System “Inhumane” says Senior Family Judge

In the blog entitled “Access to Justice” dated 7th November 2014 (www.tayloremmet.co.uk/blogs/access-to-justice/) it was reported that Sir James Munby, the President of the Family Division of the High Court, had expressed his frustration with the legal aid system in a case in which a three year old boy had been removed from his parents by the Local Authority. The parents had been denied legal aid funding as they were over the financial limit by a very small amount. The lack of funding meant that they were unable to secure legal representation. This case has since moved and the parents have now been granted legal aid.

In his most recent judgment Sir James commented that:-

“A parent facing the permanent removal of their child must be entitled to put their case to the court, however seemingly forlorn…It is one of our oldest principles of law – it goes back over four centuries to the earliest years of the seventeenth century”.

The child had been removed from his parents on 25th April 2014, the Judge was highly critical of the delay for the parents and child because of funding issues. He said “[for] far too much of the time… the focus of the proceedings has had to be on the issue of funding”, and that the “parents can be forgiven for thinking that they are trapped in a system which is neither passionate or humane”.

The full judgment in Re: D (A Child) (No 2) at (http://www.bailii.org/ew/cases/EWFC/HCJ/2015/2.html) contains a detailed chronology of the  parents’ applications legal aid. It took from 20th March to 1st  December 2014 for full legal aid to be granted. The chronology contains a list of all the emails, telephone calls and correspondence involved in the application between the Legal Aid Agency (LAA), the father’s solicitors and other bodies.

The father lacked mental capacity but was still able to work for a very modest wage; this meant the LAA’s extremely complicated and unnecessarily bureaucratic means test came into play. It would have been more straightforward if the parents had been on a passporting benefit  i.e. Income Support, income based/related JSA/ESA or Universal Credit. The system appears weighted against those who work rather than claim benefits.

Unfortunately for those of us who still offer legal aid this delay in getting legal aid does not come as a surprise. In almost every case, even when clients are on a passporting benefit, the LAA will want to know the minutia of their financial circumstances. The almost forensic approach involves a huge amount of time and cost on both sides. For clients it is extremely difficult to go through this process at a time when they are already distressed as they are in the middle of a family breakdown and/or have had a child taken into care.

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