A senior family court judge has condemned the injustice of the newly pared-back legal aid system after an illiterate mother of four, with poor sight and hearing, was forced to represent herself in a court hearing over the custody of her children.
In an unusual step, Judge Louise Hallam warned that the woman, who cannot be named for legal reasons, was not being given the opportunity of a fair trial and that she believed others around the country were also being let down.
Hallam told the hearing: “If legal aid is being refused to people such as this, I am satisfied that injustices will occur … Mothers in her situation should have proper and full access to the court with the assistance of legal advice.”
Parents involved in custody battles are no longer eligible for legal aid following cuts imposed by the justice secretary Chris Grayling in April last year. As a result, tThe number of parents in cases involving children without legal representation has since jumped by 48%.
Ministry of Justice figures, obtained by the law firm Slater & Gordon
under the Freedom of Information Act, show that for the first time a majority of such parents are not legally represented.
In the first nine months since the cuts came into force, just over 50,400 of the 88,300 parents involved in family court cases relating to children in England and Wales had no legal representation – almost six out of 10.
Judge Hallam said that she had been informed there were only “eight or nine” cases where exceptional legal aid had been granted in custody cases.
In the case before the judge, the mother, whose former husband was granted assistance with his legal fees because the local authority supported his case for custody, was said to have hearing, speech and learning difficulties.
Yet Hallam said that the mother’s case for custody needed to be heard. The judge said: “The mother still has concerns about the father’s care for the children and many of those concerns are shared by the local authority, so she has not been running a fanciful case... Without legal aid, therefore, the mother, on her own, would be facing two advocates pursuing a case against her. On any basis that cannot be equality of arms.
“She is the party with the least ability, the greatest vulnerability and she should have had the benefit of legal representation.”
Hallam said she would write to the Legal Aid Agency and the president of the family division of the high court, Sir James Munby, to make them aware of “what is happening in these courts”.
Shadow justice secretary Sadiq Khan called for an urgent review of the legal aid cuts in light of the judge’s comments.
He said: “This is a damning attack by a senior judge on the havoc wreaked in our courts by the government’s ruthless attacks on access to justice. It’s shocking that someone so vulnerable has been left all at sea in a very complex legal setting.
“What hope is there for justice being achieved if one of the parties is so unfairly disadvantaged in this way? There needs to now be an urgent review of the impact of the government’s legal aid cuts. People’s confidence in our justice system is being undermined as it becomes the preserve of the rich.”
The woman involved in the case, which was settled by agreement in August, received some legal advice pro bono from a clerk at a solicitor’s office, Cygnet Law, local to her in Middlesbrough.
Peter Medd, solicitor and managing director at the firm, said he supported calls for a review of the changes to legal aid. “The nature of children cases is that they require the courts to make decisions in the best interests of the subject child, requiring often very difficult balancing exercise in respect of competing aspects of the child’s welfare,” he said. “The decisions made by the family courts are decisions which will have significance potentially for the rest of a child’s life.”
A Legal Aid Agency spokesperson said: “This application was declined after failing to meet the standard tests on the merit of the case. Issues around the applicant’s ability to effectively present her case in court were not made apparent in the application from the solicitors and no application to review the decision was received. As a matter of course the LAA will review the case file in the light of the comments made by the judge.”