Justice is supposed to be for everyone. But cuts in legal aid in April will mean that, more than ever, it will be for those who are able to pay for it. STEPHEN LEWIS reports

DIVORCE is a horrible thing to go through. It wrenches families apart, shatters trust, leaves children torn between parents.

From April it may get a whole lot worse because, for many, it could become intrinsically unfair, too.

Legal aid for divorce cases will be cut from April 1. So other than in exceptional cases involving violence or domestic abuse, no-one will receive public funding to pay for a divorce lawyer.

In an attempt to encourage more people to seek an amicable divorce rather than turning to the courts, legal aid will still be available for mediation.

That, in itself, is not a bad thing, said Chris Myles, head of family law at solicitors Crombie Wilkinson.

He is a trained mediator and knows the value of it.

But for those who can’t afford to pay for a lawyer privately, the essential last resort of a court hearing when terms cannot be agreed for a divorce will be gone.

There will, therefore, be a real risk of unfairness, of one spouse being able to afford to pay for a lawyer to argue their case in court, while the other cannot. That could, in turn, see the ‘‘wrong’’ person getting residence (formerly known as custody) of children, or assets being split up unfairly.

“Justice will be available only for those that can afford it,” said Mr Myles.

Family law is just one area of civil law where legal aid will be scrapped from April 1.

In a package of cuts aimed at saving £320 million a year, legal aid will no longer be available for:

• Appeals against cuts in benefits

• Compensation claims against doctors or hospitals (such as Stafford Hospital, in the news for its ‘‘appalling’’ levels of care in the years up to 2008) for clinical negligence

• Legal advice on dealing with debt (unless your home is at risk)

• Employment cases

• Some areas of housing law

• Land disputes

• Education disputes (other than those invoicing special educational needs).

The Ministry of Justice accepts the cuts are an attempt to save money.

“At around £2 billion a year we have one of the most expensive legal aid systems in the world,” a spokesman said.

“It is an essential part of the justice system, but it is paid for by taxpayers and resources are not limitless.

“Going to court is not always the right answer. We want people to be aware of all their options, for example using mediation.”

The ministry stressed that legal aid would continue in cases where life or liberty was at stake, where there was a risk of serious physical harm, where there was a danger of the immediate loss of a home or where children might be taken into care.

But Mr Myles said that often, the bar to qualify for legal aid for a divorce hearing, even in cases involving abuse or violence, could be set unrealistically high.

“You will have to jump through numerous hoops,” he said. “There will be a huge amount of people that will not be able to get any help.”

Since legal aid is intended to help the least well off afford a lawyer or legal adviser, the cuts would deny access to civil justice for many, said Richard Miller, head of legal aid at the Law Society.

“If you can afford it, you will be able to get access to justice,” he said. “If you can’t, you may not be able to.”

The upshot could be unfair divorce settlements, fewer people being able to challenge incorrect benefits cuts, more people losing their homes because of mounting debts or unresolved disputes with landlords and fewer people being able to get compensation for injury caused by medical negligence.

York Central MP Hugh Bayley expects his postbag to be bulging with requests for help from constituents who do not know where else to turn after access to legal advice is denied.

Another result is likely to be far more people trying to ‘‘go it alone’’ by representing themselves in court, experts warn.

But many ordinary people will find it difficult to negotiate their way through the minefield that is civil law.

“People will not know what is or is not relevant,” said the Law Society’s Richard Miller.

Ironically it could, in some cases, end up costing the Government more not less, he said. Without recourse to a lawyer or legal adviser, more people may go to court to represent themselves and that could result in more costly court hearings rather than fewer, because one thing lawyers often do is agree to settle out of court.

If you do represent yourself in court, you often will not be competing on a level playing field.

If you want to appeal a cut in your benefit, for example, you are likely to be up in court against Benefits Agency staff paid to argue cases in court, pointed out George Vickers, of the York Citizens’Advice Bureau.

“Members of the public will be turning up and saying ‘I think that expert is wrong’. But they don’t have the legal expertise,” he said.

Legal aid for criminal law will not be affected, but only because the budget for criminal law legal aid was slashed last year, said Kevin Blount, a partner with York law firm Howard & Byrne.

While it is still possible to apply for legal aid to defend yourself against criminal charges, the effect of last year’s changes was to reduce, among other things, the amount of the legal costs someone who did not qualify for legal aid can recover when found not guilty.

This April’s cuts in legal aid affect only civil law. Here are some of the areas that are likely to be most affected:


Family law

Legal Aid will be cut ‘‘at a stroke’’ for divorce or family hearings, unless there is strong evidence of domestic violence or abuse.

Legal aid will still be available for mediation, says Mr Myles.

But you need the backstop of being able to go to court if you cannot agree a settlement through mediation.

There are a number of implications of the cut. The ‘‘wrong’’ parent ending up with residence of children, for example, simply because they could afford to pay for a lawyer to argue their case, couples separating but not being able to afford a divorce and even some people not getting married at all because of worries about what would happen if they split up.


Benefits

Many people may find their benefits cut from April 1. If so, they will find the cuts difficult to challenge in court without legal aid.

The Benefits Agency does make mistakes, said Mr Vickers. But if you cannot afford a lawyer or legal adviser, your chances of successfully challenging a decision will be greatly reduced.

“It is a step back in equality before the law,” he said.


Debt

You will still be able to apply for legal aid to cover the cost of legal advice if your home is in imminent danger of being repossessed.

But you will not be able to get legal aid to appoint a solicitor or legal adviser to help with other debt problems.

The result is likely to be more people losing their homes, said Mr Miller.

‘‘When people are having problems with debt, it makes sense to seek help early. Because it will be more difficult to do so without legal aid, debt problems are more likely to spiral out of control. “So I would expect there to be more repossession proceedings.”


Medical negligence

Legal aid to pursue cases of clinical or medical negligence will, in most cases, be cut completely, said solicitor Andrew Cragg of Langleys in York.

The only exceptions will involve injury to unborn babies or children aged under eight weeks caused by medical negligence. You may still qualify for legal aid to pursue these. For the rest, it will become much harder to make a successful claim – unless you have the money to instruct a lawyer or legal adviser.

 

What does legal aid do?

Legal aid helps people on lower incomes to pay for legal advice. It can cover the cost of mediators and legal advisers.

To get legal aid, you need to show you cannot afford to pay for legal costs and that your problem is serious.

To qualify for legal aid in civil cases, there is a calculation based on your income. Many people earning less than £2,000 a month have qualified in the past – though from April 1 this year, there are many areas of civil law for which you will not be able to get legal aid.

For criminal cases, your solicitor or barrister will check if you can get legal aid.

You automatically qualify if you are under 16 (or under 18 and in full-time education) or on certain benefits.

For more details about how to claim legal aid, visit www.gov.uk/legal-aid


Case studies

The following are example of people who, from April 1, will NOT be able to claim legal aid:

Mr H

He and his former partner Ms J have separated.

She has got engaged and wants to move to the United States with her new partner and her daughter with Mr H.

He loves his daughter and sees her regularly, but won’t be able to afford to visit her in the US.

He is devastated but will not be able to claim legal aid to oppose the move, even though he thinks it is not in his daughter’s best interests.

Mrs P

Following intervention by the local authority, Mrs P’s grandson went to live with her because her son and his wife were unable to look after the child properly.

But Mrs P is a pensioner. To get housing and child benefit to help her to look after her grandchild, she needs to obtain a parental responsibility order.

From April 1 she will not qualify for legal aid to obtain this – so care of the child will be referred back to the local authority.