The legal aid scandal that never was

family law

We have all witnessed the power of the popular media. Once its masters decide that they want to achieve a particular end it embarks upon a concerted campaign to promote that end, putting out a constant drip-drip-drip of stories supporting its views, which will eventually stir up its gullible public into a force that the government cannot ignore.

Now, it’s bad enough that such power can reside in so few people, but the ends they seek to achieve can be extremely dubious, as can the stories used to support them. It is therefore imperative that those who know the truth should stand up to the media bullies, and do everything they can to ensure that the public are properly informed.

The particular campaign that I want to discuss here is the anti-legal aid campaign. As if legal aid hasn’t suffered enough recently under the cost-cutter’s knife, the popular media, or at least a section of it, has in its righteousness embarked upon a crusade against the squandering of hard-working taxpayers’ money on legal aid for public law children cases. The message is clear: it is an outrage that the pockets of fat-cat lawyers should be lined with public money wasted defending feckless parents who shouldn’t be allowed to bring up their children in the first place.

The recent focus of the outrage has been the ‘revelation’ that ‘child killer’ Ben Butler was ‘given’ £2 million by taxpayers to fund his battle for ‘custody’ of his daughter Ellie, who he went on to murder. Now, the truth behind that story has been revealed by many, including myself, in a post here. However, the media does not of course let the truth get in the way of a good story, so they are still referring to the Butler legal aid bill as a ‘scandal’.

A story yesterday in a certain national newspaper that shall remain nameless created a link between the Butler legal aid ‘scandal’ and some recent comments of the President of the Family Division Sir James Munby. The comments were contained in the 14th ‘View from the President’s Chambers’, published last month. In it, the President looked at two initiatives that could help reduce the cost of care proceedings – an issue that is becoming critical as the number of care cases increases, but the resources available to deal with them does not.

One of the two initiatives related to the use of the ‘tandem model’ in care proceedings. Under the tandem model the child is represented by both a guardian and a solicitor. The President made it clear that he was strongly opposed to any watering down of the tandem model, without which he said that the potential for injustice was much increased. However, he said that the Ministry of Justice, with his support, was investigating whether there was scope, at certain stages in the proceedings and at certain type of hearing, for dispensing with the attendance of some, or even, in some circumstances, all, of the child’s professional team.

The President did not, as the newspaper headline stated, demand that the number of ‘taxpayer-funded lawyers’ is cut, and nothing he said related to the Butler case, despite the newspaper conflating the two stories. Yes, he did say that public money is sometimes squandered on tasks that are not necessary to enable the court to deal with proceedings, but that hardly amounts to a scandalous misuse of legal aid.

Now, I have no problem with preserving precious resources, but my concern with the anti-legal aid hysteria is where it might lead. It has been said often, but the removal by the state of children from their parents is one of the most serious steps that the legal system can take. Parents in such cases require the best representation available. To deny them full, or perhaps even any, representation, as it seems some would wish, would be an injustice of the highest order, and really would be a scandal.

Photo by floeschie via Flickr under a Creative Commons licence.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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