Sunday, 2 November 2014

Legal Aid Cuts Punishing Disabled Families

The thought that goes into the needs of disabled litigants
Two cases reported in the past week relate to litigants-in-person lacking the ability to represent themselves in court, but under the current system, being unable to secure legal aid. 

People with specific learning difficulties have had problems in court for years, and prior to the legal aid cuts, many were failed by the system. What was an aberration, sadly, is now underpinned by feckless Government policy and a Ministry of Justice which is anything but. Such criticism also encompasses attempts by the Government to limit judicial review (can't have judges pointing out failings in Government policy), dismantling of legal aid in criminal law, and the Government's desire to abolish the Human Rights Act (human rights... where's the profit in that?).... and we could go on, and on, and on.... but back to this week's legal news.

The first case involved an illiterate mother, with poor sight and hearing, forced to represent herself in court over child arrangements. The gender isn't important, her disability is. Judge 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.”
The second case reported this week is yet more concerning. Parents with special needs, and the father having an IQ of 50 and specific learning difficulties facing their children being removed from their care and placed for adoption (no doubt under the Government's equally poorly resourced "fast track" system). A care order existed, but with the children living at the parents' home under the order. Sadly, under such circumstances, when the Local Authority considers removal, non-means tested legal aid is not available, and the father is expected to pay for solicitor and counsel from his spare £73 a week. In my county, advocacy services for the disabled are being cut by 40%, along with other services. No doubt more disabled parents will struggle.

Grayling has already criticised the President of the Family Court for raising concerns that adoptions are being rushed through without alternatives being adequately explored.

Thankfully the judge at trial in this second case passed matters to the President of the Family Court for review, whose criticisms (couched in moderate language, but the equivalent of a small nuclear explosion in the Government's direction) included:
"Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for 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 – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable."
"...the parents were entitled to non- means, non-merits, tested legal aid when facing the proceedings under section 31, at a time when removal of their child was not the plan. Yet when they are now facing an application for the permanent removal of their child and his adoption they are denied legal aid. That, to use no stronger expression, is a decidedly curious consequence of the scheme embodied in Regulation 5 of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013. Some might suggest that it is irrational. No doubt it is some imperfection on my part, but I confess that I struggle to understand the policy or rationale underlying this part of the scheme.
Both the trial judge and President shared the conclusions that:
"A parent with learning difficulties who is not entitled to legal aid is at a very great disadvantage when seeking to stop a local authority removing his child."
"The current system in which so much of the responsibility for representing parents who lack capacity falls on the shoulders and inadequate resources of the Official Solicitor is nearing breaking point.”  
I think it fair to say that if Sir James Munby, President of the Family Division of the Court, finds the Government's policy lacking in rationality, it's fair to say it's lacking in rationality. Thankfully, Sir James understands the rules of cricket, and goes on to explain them to Mr Grayling & Co(alition):
"It is, however, the responsibility – indeed, the duty – of the judges in the Family Court and the Family Division to ensure that proceedings before them are conducted justly and in a manner compliant with the requirements of Articles 6 and 8 of the Convention. That, after all, is what Parliament determined when it enacted section 6 of the Human Rights Act 1998, declaring, subject only to section 6(2), that it is “unlawful” for a court to act in a way which is incompatible with Articles 6 and 8."
Such a duty also falls on the shoulders of Government. It's no doubt an irritation to the Government that the Human Rights Act exists (they've said they want to abolish it), but even then, the United Nations Convention on the Rights of Persons with Disabilities still places obligations on Grayling and Co(alition).  Are you listening Mr Grayling? The answer to all such problems isn't that people should work for free... unless of course you're prepared to lead by example (anyone remember Hacker's Hair Shirt?). Again, money is found for all manner of things (MPs subsidised lunches for one). What most guarantees our respect in the world, our human rights record or our ability to bomb other countries. It would appear policy favours the latter.

No doubt Grayling will once again fluster and bluster at having been called out on his poorly thought out family/legal policy. Thank God we're not currently saddled with a weak President of the Family Court.

Helping someone through court proceedings who has a learning difficulty takes time and patience. It can't be rushed. It can't be done on a budget or a shoestring. Time spent getting a stressed litigant to articulate a chronology, their wishes, their plans and proposals is hard regardless of whether the litigant has communication difficulties... but in the event of disability, becomes a much greater challenge. That, Mr Grayling, is reality.

Next time Cameron thinks of 'moral duties' (he recently announced it was his 'moral duty to cut taxes') he should point his moral compass first at the disabled and their needs. Would it help if they were natural Conservative voters or better yet, party donors?

Sir James' judgment is repeated, in full, below, and thank heavens that one small bastion of our green and pleasant land remains within the toxic soup of Coalition policy: