And reading the post on Flawbord this week has prompted me to go back to HMCTS / the MOJ to call them out on their promise to publish updating stats on 12 Jan via another FOI request. Watch this space for news as to whether or not the numbers of LiPs rose between July 11 and Sep 11.

What do we think people? “Higher! Higher!” Brucey bonus if I’m right.

In short, the LSC says that some of the office addresses of NYAS were omitted from their tender application. So that’s it. They’re out. No right of appeal. Notwithstanding the fact that NYAS dispute the suggestion the address information was omitted, saying that there was a technical error with the online portal which was the sole route for submitting tender applications. And notwithstanding the fact that the LSC presumably had the information it now complains was missing, since NYAS has been a provider since 1999.

From discussions I’ve had with local solicitors, the application process and the portal left something to be desired: no way of knowing whether or not your application had been correctly received or received at all, coupled with an inflexible deadline and no right of appeal left many very anxious.

There are around 70 organisations in the same boat, with equally valid grievances, but the NYAS case stands out for me. NYAS are unique – they are the only body other than CAFCASS who are able to represent these children, and there are some cases where a child’s trust in CAFCASS has been lost, or where CAFCASS lack capacity or expertise.

Frankly it’s scandalous that the LSC can run it’s operations in such a way as to achieve results like this. “Computer says no” is no basis upon which to run a public body whose purpose is to serve the interests of justice. What possible public interest can be served by operating in this purposely inflexible way? I often ask the same question about the non-payment of counsel’s fees – but to that there are a number of obvious skeptic’s answers (to keep a bit more cash in the bank until the end of the financial year, or to  run the bar out of business if you are really paranoid). But what about the rationale for this? If I were a conspiracy theorist I might think that NYAS have fallen foul of the Government’s antipathy towards private law children proceedings in general, but I know that in reality there is no rationale. It is just mindless bureaucracy.

I don’t know which is worse.

You can read the full appeal documentation on the NYAS website.

NYAS are asking people to write to Ken Clark or to their MP.

For myself, I’m taking bets on a JR of the LSC being launched by someone before Valentine’s day is out.

This review is a guest post written by  Julia Belyavin, barrister at St John’s Chambers, Bristol.

Legal Aid Handbook 2011/12, Ed Vicky Lang & Simon Pugh (Legal Action Group)

I’ll be honest, when I was reminded that I’d said I’d review the Legal Aid Handbook 2011/12, my heart sank.  It was definitely a ‘what was I thinking?’ moment.  And it is fair to say that the subject matter is, by its very nature, fairly dry and technical.  However, this guide compresses the need-to-know basics (plus a brief gallop through where we are now and quite where reforms might take us) into fewer than 400 pages.  Compared to the 3 volume LSC Manual, that alone makes it a godsend.  The language is clear, informative and as jargon free as it is realistic to expect in the circumstances.  Certainly from the perspective of a family barrister the information was accurate to the best of my knowledge and belief (if you’ll excuse the lawyer’s pun) and it was also very helpful to get a perspective on the duties (and workload) of solicitors.  Of course, given its length it is not and cannot be comprehensive but salient points are covered and there are useful references to the relevant parts of the Manual/LSC website (the latter particularly helpful, as the search engine rarely comes up trumps in my experience).  However, it gives advice about all stages of client representation, from assessing eligibility, representation (if required) and the small matter of receiving payment.  All in, this is a great starting point for any queries about legal aid, and a useful addition to the library.

The Legal Aid Handbook can be purchased from the LAG online bookshop here.

Apparently the document arises from “a group of lawyers and journalists, including representatives from both the print and broadcast media, [who] got together to talk to each other”. Whatever that means this is not, I think, a piece of work that the family bar were particularly aware was underway.

Regardless of that, it’s a pleasant surprise, because this is a really useful document for lawyer practitioners and for judges, albeit probably a bit inaccessible for non-legal interested minds. It is a job and a half gathering together all the source material whenever a reporting issue comes up, and this is a really comprehensive analysis of what rules apply in what cases, including in the Court of Protection. It is far more comprehensive and accurate in its points of detail than my previous blog posts and I will use it as a reference tool when such issues arise in my cases. It is also worth noting that there are some interesting, albeit rather esoteric, questions raised about a number of potential points of law, which do rather invite the attention of mischievous lawyers with too much time on their hands.

You can read the guidance on the Judiciary website here.

So, to the main point:

There is much concern at the LASPO proposals on legal aid. There are many individuals and organisations doing their best to bring to the attention of the public and parliament the reality of what these cuts will mean for ordinary people. Sound off for Justice produced an excellent video campaign featuring a hypothetical private law family dispute (a father seeking contact), but otherwise there is little concrete information out there to counter suggestions that public funds are being frittered away on legal aid for undeserving or trivial cases. Individuals involved in private law family cases are likely to be particularly hard hit by the proposed cuts, and whilst those involved in the field of family law are able to articulate the myriad reasons why the cuts would be catastrophic for access to justice somehow the message is not getting across as effectively in family law. I am concerned that family law will end up bearing the brunt, where concessions are made in other areas, because I think it is in many ways the easiest target. I have been pondering whether this difficulty is in large part because the impact of legal aid on people’s lives is not made real in family cases in the way that it is in other types of work. Unlike housing or PI, where vulnerable people who have been helped by legal aid are able to tell their story, there are no real case studies of family cases – because they cannot be reported.

I began to think a few weeks ago whether or not it would be appropriate in the court of my work to make an application for permission to report limited categories of information about cases in which I was involved, for the purposes of case studies. I have had several recent cases in which, if they were to take place after implementation of the proposed cuts, would result in chaos and catastrophe. I concluded that this would raise a number of practical difficulties, such as the obtaining of consent from both (all) parties and their lawyers, the drafting of the information proposed to be released, the mechanism by which such an application would be dealt with and the costs of the same. In the context of already packed lists, overworked lawyers and anxious parties this all seems a bit difficult.

But what if there were a recognised scheme for the reporting of information for the purposes of case study? It could look something like this:

• There would need to be a short information sheet for provision to parties, opposing lawyers and judges
• Applications could be dealt with on paper if agreed or at the conclusion of an already listed hearing if not
• Lawyers would need to agree to make such applications pro bono as they would not be covered by public funding – there would be costs implications if a hearing had to be convened simply for the purpose of dealing with the application, and there would be difficulties if an opposing lawyer sought their costs. This does mean I think that most if not all applications could only proceed if by consent
• There would need to be a pro forma / template setting out the categories of information which it is proposed should be disclosed, any categories or specific pieces of information which should NOT be disclosed, and in some cases it may be preferable for there to be an agreed statement of facts to be prepared for the purposes of disclosure
• A pro forma draft order would need to be prepared
• They types of information that might be covered could be:
• type of case – contact, residence, etc
• description of the central factual and legal issues,
• summary of litigation history,
• duration of hearings past and listed, who has or is likely to be cross examined and by whom and broadly on what topics,
• if the case has or will involve allegations of d.v., non accidental injury, emotional or sexual abuse
• whether there are any third parties involved and what their relation to the child and role in the case is
• if there is a 9.5 / 16.4 guardian appointed or any experts
• whether or not either party does or has qualified for legal aid, whether or not they are or have been represented and whether or not they would qualify under the new scheme (and if not why not).
• any point of law or legal difficulty / novelty.
• There would be no need to lift the usual anonymity provisions – any drafted case summary could identify the pseudonyms by which the parties / children should be referred in any publication
• There would need to be consideration given to the mechanism for any press interviews that might be undertaken in respect of the case – and indeed if such an interview were to be permitted at all. This is potentially far more problematic, as there is potential for inappropriate material to slip out.
• Scheme information could be circulated (and endorsed) via professional and representative bodies (FLBA, Law Soc, Resolution, Judiciary?)

Respondents to non-molestation orders (harassment / domestic violence injunctions) rarely qualify for legal aid. The rationale is that such use of public funds is not justifiable where they can simply attend court as a litigant in person and offer an undertaking (a solemn promise to the court not to behave in a particular way, which is punishable by imprisonment and can stand in the stead of an non-molestation order).

The Legal Services Commission Decision Making Guidance says in respect of Respondents:

11. Legal Representation to defend domestic violence injunction proceedings will also be considered under section 11.10 of the Code. However, prospects of success and cost benefit criteria are unlikelyto be satisfied by a respondent to non molestation proceedings only, unless there are very serious allegations which are denied wholly or substantially. An exception is where there is any question of inability to defend for example because of mental incapacity or age, in which case a grant is likely to be justified. When considering cost benefit, the impact on the client of the order sought will always be taken into account, including any impact on contact or other related family proceedings. However in all cases the client will still need to demonstrate at least borderline prospects of wholly or substantially rebutting the allegations made.

12. In cases where the allegations are less serious or are admitted to a significant extent the main issue may well be whether the respondent should give an undertaking to the court and what form that undertaking should take. Legal Representation is unlikely to be granted in such cases but see paragraph 20.10 regarding the use of Legal Help (which can escape the application of a standard fee).

As to which I observe that in my experience paragraph 12 appears in practice to operate to cover almost all cases, not just those involving less serious or admitted allegations. It should be said that in cases where an occupation order is sought and a Respondent is liable to lose his home funding for representation is more often granted. 

The offer of an undertaking will only result in the conclusion of the case where it is accepted by the Applicant. An Applicant who insists on her order will be entitled to a determination. Remember this, it is important.

So, all of this works pretty well in many cases, less so in cases where for one reason or another an undertaking is not appropriate (for example because there is a need to equip the police with a specific power of arrest in case of any breach, or the need to back an order with criminal penalties if breached as an effective deterrent), where a litigant in person is left struggling with the evidence gathering process and may end up making a ham-fisted attempt to cross examine the ex s/he has (allegedly) previously abused, which is potentially traumatic for the victim or wrongly accused, and unsatisfactory for everyone.

Post LASPO the Applicant for a non-molestation order will be disinclined to accept an undertaking because if she does she will not qualify for legal aid in any children act proceedings (unless she is able to obtain some other “objective evidence” of the domestic violence):

“Undertakings are not in themselves sufficiently clear, objective evidence of domestic violence and, for that reason, we have decided that they should not be accepted for this purpose.” says the government in it’s response to the Justice Select Committee. This is not a new point, but one example of it’s discussion can be found in the shape of an article in The Guardian by Jon Robins last week: U-turn gives legal aid to victims of psychological domestic violence (although the last sentence, which suggests that: “violent wife-beaters can give an undertaking in court and effectively deny their victim access to legal aid” is not strictly accurate – remember that thing I told you was important? That. The applicant may, in effect, veto the use of an undertaking, but the respondent cannot veto the applicant’s right to a hearing on her application – although in less serious cases a judge may be reluctant to list for a contest if an undertaking is a plainly satisfactory solution to the problem at hand, and may apply a certain amount of pressure on the parties to settle a case in this way).

Currently, the justification for refusal to fund Respondents to non-mols is a pragmatic one rather than a principled one – no funding required because a contested hearing can be avoided through undertakings. The existing guidance already contains sufficient safeguards to significantly restrict the number of publicly funded respondents, so what justification is there for an outright bar on public funding for respondents, even in those cases where the allegations are very serious or where there are issues of capacity? In future NO Respondents to such applications will be eligible for funding, even though there is likely to be a significant upturn in the proportion of cases in which a contest becomes necessary, and consequently the number of cases in which findings of domestic violence are sought and made.

I know it is stating the obvious to point out that this seems to run contrary to the interests of justice and to cut across article 6, as if this were the only such shocking or surprising instance. It is of course only one of many glaringly awful scenarios that the man and woman on the clapham omnibus will be having to face in future. I’m just struck by how this example demonstrates unavoidably how unprincipled are the proposals in family cases, which appear to secure access to justice for alleged victims of domestic violence and to deny it to those who are said to be perpetrators (and to those fortunate enough not to have got caught up in domestic violence).

I haven’t yet seen any discussion of whether the LASPO proposals as they stand may be indirectly discriminatory, and it would take a lawyer with greater expertise in the field of discrimination than my own to properly analyse this, but…an argument might begin something like this:

The government talks a lot about zero tolerance of domestic violence against women and girls, but one can only assume that if asked they would say “Oh but yes of course, we also meant to refer to male victims – oops, slip of the tongue”. Routinely implying that domestic violence is always perpetrated by men on women demonstrates laziness and undermines the apparent sincerity on such important matters.

However, it remains the case that most often respondents to non-mol applications are male (no funding) and most often respondents to allegations of domestic violence in children cases are male (no funding) (Incidentally, I don’t know if the proportion of d.v. by gender is similar to the proportion of applications for protection by gender, but I have a hunch that a lower proportion of the d.v. that is carried out against male victims finds its way to the family courts than for women, for a range of cultural / social reasons). In both instances the applicant, most likely a woman, will be female and in receipt of public funding (as long as she has got her objective evidence, which she can be confident of obtaining since she has the advantage of a lawyer to cross examine her litigant in person ex and to argue her case). It seems to me that this differential treatment of alleged victim as compared to alleged perpetrator is likely to disproportionately disadvantage men (the government of course would have us all believe it disadvantages no-one at all, apart perhaps from a few cushty lawyers).

Note: This is poorly proof read, but I’m determined to get it up tonight. Apologies if syntax is wonky or garbled and punctuation is rather arbitrary.

• an article on the bringing to a close of children proceedings through the making of orders under s91(14) Children Act 1989: Section 91(14) Orders – A Never Ending Story? (Family Law Week), and
• an article on the attempt to bring an end to civil legal aid by the government: Ignore the warnings about legal aid changes and risk meltdown in courts (Guardian)

Those responsible for the latter could do to take a leaf out of the former: draconian powers, not to be used summarily…sadly we read today that the Government is planning to fast track the Legal Aid, Sentencing and Punishment of Offenders Bill – second reading on Weds next week. That is really, really shoddy: politics at its worst.

Headlines: The confirmation of the removal of large numbers of private law cases from scope of legal aid, and of the reduction of family fees by 10% (on top of the FAS cuts implemented in May).

The Bill

Part 1 of the Bill itself is dedicated to Legal Aid (Clauses 1-40). The Bill contains provisions to abolish the LSC and transfer the day-to-day administration of legal aid to the Lord Chancellor. In practice, this will be done by civil servants in an executive agency of the Ministry of Justice. However, decisions on legal aid in individual cases will be taken by a statutory office holder: a civil servant designated by the Lord Chancellor as the Director of Legal Aid Casework. The Lord Chancellor will have no power to direct or issue guidance to the Director in relation to individual cases

There are empowering sections for the Lord Chancellor on legal aid issues, there is some provision about funding legal services and eligibility for legal aid (Clause 20). By Clause 36 the Legal Services Commission is abolished.

Clause 9 is an important provision for the payment of legal aid for ‘exceptional cases’ (i.e. where failure to do so would be a breach of the individual’s Convention rights within the meaning of the Human Rights Act 1998). It is clear from the tenor of the response paper that the Government anticipate that this will be a narrow category, albeit with some initial boundary testing via JR.

In Part 2 of the Bill there is provision (Clause 45) for a new section 22ZA of the MCA 1973 for the payment of a sum to enable the other party to obtain legal services in proceedings for divorce, nullity of marriage or judicial separation. Clause 22ZB sets out the matters to which the court should have regard in a legal services order.

Schedule 1 sets out the categories of cases in and out of scope. Schedule 1 is structured in a rather confusing way with a set of “excluded services” and other “exceptions and exclusions” some of which then don’t apply in certain instances. I suggest you tackle it in print rather than on screen.

The Response

The response contains a narrative of the contents of the Bill, and sets out the Legal Aid Reform Programme.

There is a very poor assessment of the impact of litigants in person in the courts.  There is a summary of the findings of a literature review in the main response thus (para.138) “Overall the review found that the evidence available on litigants-in-person tends to suggest a mixed impact in length of proceedings. This was affected by case type and how active the litigants were. It was suggested that cases took longer when the unrepresented litigant was active but could take less time when the litigant was inactive.” See also para 68 – 69:

“68. However the Government does accept, even if there is no conclusive evidence of this, the likelihood of an increase in volume of litigants-in-person, and potentially some worse outcomes for them materialising. But it is not the case that everyone is entitled to taxpayer funded legal representation for any dispute or to a particular outcome in litigation. Our new exceptional funding scheme will mean that no one will be deprived of their fundamental rights of access to justice. Taxpayer funded representation has had to be targeted on priority areas.

69. Litigants-in-personareafeatureofthecurrentjusticesystem.Some people choose not to be legally represented because they consider it unnecessary or that they can do a better job themselves, and others, who may fail to qualify for legal aid on either means or merits grounds, may feel that they are unable or unwilling to pay for representation.”

and 74:

“74 …further examination of the system to support litigants-in-person is required and we intend to review this issue.”

But not before they implement the cuts it seems.

Even though the majority of responses to the Green Paper were “overwhelmingly” against the removal of private law cases from scope, the proposal to exclude large numbers of private law cases from the scope of legal aid has been confirmed. However, some of the exceptions have been expanded.

Domestic violence: The Government maintains that it accepts that, to ensure that victims of domestic violence are protected, the criteria for the domestic violence exception originally proposed in the consultation needed to be widened, whilst maintaining the requirement for objective evidence of domestic violence. It therefore decided to accept some additional circumstances as evidence of domestic violence, so that the criteria should target legal aid to genuine cases without providing an incentive for unfounded allegations of domestic violence. Legal aid will be now available, for example, where there has been a referral to a Multi-Agency Risk Assessment Conference in the past 12 months, as well as where a protective injunction or other order has been put in place in the past 12 months.

The Government accepts that legal aid should be routinely available in cases where a child is at risk of abuse, provided that there is objective evidence of the risk of abuse. The Government has therefore decided to extend the approach to the criteria for the domestic violence exception in private law family cases to provide legal aid for the party seeking to protect the child in cases.

I need to look at this properly but my understanding of the position from the response paper is that in order to obtain a grant of legal aid the applicant for funding must produce objective evidence either be criminal proceedings, MARAC OR civil findings of fact (or in the case of children a CP Plan). If this is right it rather defeats the object of having funding, which will in many cases be in order to run a fact finding exercise. As I say that is something I need to check. Views welcome in comments.

Other points:

• Legal aid for mediation will be expanded (slightly).

• The interim lump sum provision will be brought in for ancillary relief cases (see above); however

… the Government has not been persuaded that legal aid should be available for advice and/or representation to apply for an interim lump sum costs order or for enforcement proceedings (see para.119)

• The exceptional funding regime will be in place to provide legal aid where the failure to do so would be likely to result in a breach of the individual’s rights to legal aid under the Human Rights Act 1998 or European Union law.

• On the subject of fees… it is to be noted that “there was strong opposition to the proposals”; it is further accepted that “there is a risk that the fee reductions could lead to a reduction in the availability of solicitors and barristers prepared to undertake legally aided work” (para.233)… (para.234) however, “… we intend to implement the reduction of 10% to all fees paid under the civil and family legal aid scheme as set out in the consultation”

• The proposals for QCs remains as proposed in the Green Paper: “A QC is a specialised resource. The Government takes the view that they should only be used in novel, complex or exceptional cases which require that level of skill” (para.245).

• Expert fees: “The Government notes concerns about the level of fees paid to expert witnesses. However, given the need to make substantial savings to legal aid, it remains the Government’s view that fees paid to experts should be subject to the same constraints as those paid to lawyers”. (para.259)

More in due course.

MINISTRY OF JUSTICE

Proposals for the reform of punishment, rehabilitation, sentencing and legal aid

The Lord Chancellor and Secretary of State for Justice (Kenneth Clarke QC):

Today I will lay before Parliament the Government’s responses to two important consultations on the future of the justice system – Breaking the cycle: effective punishment, rehabilitation and sentencing of offenders, which was launched on 7th December 2010 and Proposals for the Reform of Legal Aid in England and Wales, which was launched on 15th November 2010. I am also introducing the Legal Aid, Sentencing and Punishment of Offenders Bill to give effect to those measures requiring primary legislation. I will be making an oral statement this afternoon.

Protecting the public from crime, ensuring those who break the law face the consequences, and providing swift, cost-effective and fair access to justice are fundamental responsibilities of the state towards its citizens. Yet the last 13 years of government have left a justice system in urgent need of reform.

In the area of criminal justice, a tidal wave of criminal justice legislation has left the system in crisis: neither punishing offenders properly for the crimes they have committed, nor giving adequate protection to the law-abiding public.

In civil justice, we have a system burdened by spiralling costs, slow court procedures, unnecessary litigation, and too limited an awareness of alternatives to court – all of which add to a fear of a compensation culture. In particular, our current system of legal aid too often encourages people to bring their problems before the courts, even when they are not the right place to provide good solutions and sometimes for litigation that people paying out of their own pocket would not have pursued.

The package of reforms I am bringing forward today aims to reform radically our justice system to focus it on fundamental priorities.

Punishment, rehabilitation and sentencing of offenders

Within a year of leaving jail, half of prisoners (49%) are reconvicted of further crimes, creating new victims and harm to society. Whilst they are behind bars prisoners face hours of enforced idleness, free from the discipline of hard work. Underpinning these problems are widespread drug and alcohol abuse, and poor mental health. The previous government’s responses have left a dysfunctional cycle of persistent crime, inadequate punishment and failed rehabilitation. Over twenty Criminal Justice Bills in thirteen years created an unworkable sentencing framework and a statute book littered with overprescriptive law that undermined the expertise of professionals.

The consultation set out wide-ranging plans to deliver tougher punishment, to introduce a rehabilitation revolution to prevent offenders committing further crime, and to ensure that the sentencing framework is sensible and workable. The Government has listened carefully to the points raised in more than 1200 submissions and is seeking to take forward measures under five themes, including:

Punishment
· Creating a working week in prison of up to 40 hours instead of enforced idleness.
· Introducing tougher, properly enforced community punishments. This includes: allowing courts to impose longer curfews; enabling courts to ban overseas travel; and properly enforced financial penalties, including seizing assets from those who do not pay.
· Introducing a mandatory custodial sentence for knife possession in aggravated circumstances.

Payback
· Creating more ways in which offenders make reparation. We will begin by implementing the Prisoners’ Earnings Act 1996 and legislating to extend our powers to deduct and use money earned by prisoners to support victims; and
· Overhauling unpaid work obligations so that offenders work longer hours, carrying out purposeful, unpaid activity that benefits their local community;

Progression
· Getting more offenders off drugs and alcohol for good, by piloting an initial five drug recovery wings and by cracking down on the use of illicit drugs in prison. The MOJ will also work closely with the Department of Health to tackle inappropriate use of prison to house low risk individuals with mental illness.
· Extending the use of payment by results to cut reoffending, with services delivered by the voluntary, independent and public sectors. Already, at HMP Doncaster the provider, Serco, will pay back 10% of the contract price unless they reduce reoffending by 5% points from current levels. In July six new pilots will begin in areas including Greater Manchester and London.

Transparency
· Opening up justice so that the public has a clearer view of how the system is working for them.
· Creating a more proportionate justice system, focusing resources where they will be most effective, including creating a clear national framework for the use of out?of-court disposals, reforming the use of remand, and reducing the number of Foreign National Offenders. We will also conduct an urgent review of the indeterminate sentence of Imprisonment for Public Protection with a view to replacing the current IPP regime with a much tougher determinate sentencing framework.
· Clarifying the law on self defence.

Alongside these measures, there should be no misunderstanding about things the Government has never proposed and is not doing. Contrary to some reports, the Government has never proposed targets to reduce the number of prison places, abolish short sentences or the mandatory life sentence.

What all the proposals we are taking forward amount to is a clear break by the Government from the mistakes of the past. By implementing this bold but realistic package of reforms, we are seeking to deliver a system which effectively punishes the guilty whilst substantially improving the national scandal of our reoffending rates. They should also reduce costs and improve delivery. This is a new, more intelligent course for the Criminal Justice System and one that we anticipate will make a tangible difference to addressing crime and helping victims in England and Wales.

Reform of legal aid

We are also committed to overhauling our system of civil justice, including through an independent review of family justice, wider access to alternatives to court, measures to streamline civil justice, a criminal justice system efficiency programme and improvements to the ‘no-win, no fee’ conditional fee regime. The overall aim is a fundamental shift in the justice system towards greater effectiveness and efficiency – and a move away from the sorry situation in which the average citizen dreads recourse to the law.

Legal aid reform is a crucial element of this wide-ranging agenda. The current system of support too often encourages people to bring their problems before courts. In addition, legal aid has expanded into areas far beyond its original scope. It is now among the most expensive systems in the world, second only to Northern Ireland, costing over £2 billion a year, or £39 per head of population compared with £8 per head in New Zealand, a country with a broadly similar legal system, and as low as £5 per head in some EU countries. In the current fiscal climate, this is simply unsustainable.

The proposals in the consultation set out to address these problems by: ensuring access to public funding in those cases that most require it; encouraging early resolution of disputes instead of unnecessary conflict; and improving affordability and value for money for the taxpayer.

Our plans attracted more than 5,000 submissions. Following careful consideration, today’s response makes some significant changes in matters of detail, but seeks to take forward the substance of most of the reforms published in November, including:

· Retaining routine availability of legal aid for cases where people’s life or liberty is at stake, where they are at risk of serious physical harm, or immediate loss of their home, or where their children may be taken into care. Following consultation, we are strengthening specific provisions to ensure availability in private family cases for victims of domestic violence, for children at risk of abuse or abduction and for Special Educational Needs cases.
· Pressing ahead with introducing a more targeted civil and family scheme. Prioritising critical areas means making clear choices about availability elsewhere. Legal aid will no longer routinely be available for most private family law cases, clinical negligence, employment, immigration, some debt and housing issues, some education cases, and welfare benefits.

People will instead use alternative, less adversarial means of resolving their problems (notably, in divorce cases, where the taxpayer will still fund mediation). Fundamental rights to access to justice will be protected through retention of certain areas of law within scope and a new exceptional funding scheme for excluded cases.

In sum, the Government intends to implement the substance of the legal aid reform package, refined in specific places. This constitutes an extensive set of very bold reforms, the overall effect of which should be to achieve significant savings whilst protecting fundamental rights of access to justice.

From a quick whizz through insofar as it is relevant to family law it appears little has changed since the Green paper. No big surprises immediately declare themselves – of note though is the removal of ToLATA from scope – so cohabitees with claims to property are comprehensively stuffed and will have to fall back on the state because they can’t enforce an entitlement their own home – brilliant cost saving that. The definition of “abuse” has been recrafted into something which means – well, who knows what it means. It seems that questions of whether an adult or child is at risk of abuse will be left to civil servants on funding applications since the LSC is being abolished. These are of course the substantive questions in much children litigation which rather begs the question. Other changes include placing the courts power, developed through caselaw, to make orders for one party to contribute to the legal costs of the other on an interim basis – on a statutory footing, rather than as a species of MPS.

As expected all arguments about equality of arms have fallen on deaf ears – only the complainant in respect of allegations of abuse will be entitled to representation and advice. The poor sod on the receiving end of serious serious allegations (whether true or not) will be left to his (most often his) own devices.

More later.