Parents the length of England and Wales are feeling the cuts to legal aid brought about in April 2013.
Presently, legal aid is only available in very limited circumstances for parents and is, in most cases, subject to means testing.
Since the cuts a great deal of parents find themselves appearing in person at court, unable to afford solicitors fees to represent them in what can be complex legal proceedings.
Judge and President of the Family Division, Sir James Munby said last week that the state has ‘simply washed its hands of the problem’ in a case where vulnerable parents, faced with having their child taken away by the local authority, were unable to secure legal aid. The parents each have learning disabilities. They were denied legal aid in an action to stop their child being put up for adoption.
Sir Munby considered it to be ‘unthinkable’ that the parents should have to face the local authority’s application without proper legal representation. The parents have to date relied upon pro bono representation, which means their solicitor has spent over 100 hours on their case for no remuneration.
Munby said that ‘the state has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought’. Instead he suggested that it has been left to the goodwill of members of the legal profession to represent them.
Parents are turning to solicitors and barristers in the hope that they will take on their case for free. They are also relying on McKenzie friends to assist them in the court process.
McKenzie friends are individuals who are not legally qualified but can take notes, suggest questions and provide support to a parent at court. Due to the legal aid cuts and the greater need for McKenzie friends the Society of Professional McKenzie Friends was formed earlier this year. At present anyone can become a McKenzie friend. The society aims to ensure that membership will mean that the McKenzie friend will be accredited and have some kind of qualification in law. Ray Barry, chair of the society admits ‘we have not got the level of training a qualified solicitor has. In the grand scheme of things a McKenzie friend will often not be as good’. It is also worth pointing out that McKenzie friends will not always assist parents for free and can expect payment.
Unfortunately, there is no change on the horizon. Labour’s legal aid spokesman Andy Slaughter MP has confirmed if they form the next government that they would not reverse the legal aid cuts made by the coalition.
In the meantime however, Sir James Munby has made it clear in the above case that if legal aid is not available he will instruct another public body to fund the parents’ case.
On Thursday of this week Munby will decide whether legal aid, the local authority or HM Courts and Tribunal Service will fund representation. Will this then set a precedent for parents in similar circumstances in the future? Will this have any effect on the restrictions to legal aid? In the latter it is unlikely but watch this space!