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Put down your crystal balls and get real on legal aid, Wall LJ says

27 September 2010

The future of family legal aid is no longer a matter of debate – much of it will disappear and take the opportunity for drawn-out litigation with it, according to the president of the Family Division.

Lord Justice Wall said no “crystal ball” is necessary to know that an age of conciliation and mediation is about to be forced upon families.

Speaking to the charity Families Need Fathers in Coventry, Sir Nicholas said: “You do not need a crystal ball to see that legal aid for private law proceedings is likely to be further diminished if not abolished, that long and protracted contact and residence disputes will become things of the past, and that out-of-court mediation and conciliation will be encouraged.”

The government is likely to swoop any recommendations posed by the current family justice review to bolster a significant political shift in attitudes to domestic disputes, Sir Nicholas added.

He warned the sector that there would be no point clinging to ideals in the face of swingeing government cuts, explaining: “The impression I have gained so far is that the government is likely to invest heavily in the outcome of the family justice review currently under way. Be under no illusions. The recommendations are likely to be radical. There are no sacred cows.”

The first stage of the Ministry of Justice’s review into the way family law is handled in England and Wales is due to close on 30 September.

Evidence gained from interested parties, including children, parents and professionals will form the basis of a raft of proposals scheduled to be published for public consultation next spring.

The review is being led by a panel of experts with an independent chair, David Norgrove, and will report back this time next year.

In a tub-thumping speech calling for improvements in mediation, Sir Nicholas told the audience not to criticise lawyers for the shortcomings in the system, arguing that parliament must step in to resolve key disagreements in areas such as shared residence orders.

“The best thing about the family justice system, in my view, is the people who work in it,” he said, adding: “Most of them, in my experience, are decent, honest and hard-working. They are not in it for the money, but do the work because they believe in it.

“This may not be a view you share. You may tell me that your experience is different. But it is always a mistake, I think, automatically to attack the good faith of the professionals with whom you deal.”

In another part of the same speech, Sir Nicholas explained how harmful parents’ attitudes to disputes can be to their children and warned that more intelligent parents could mean a more difficult divorce.

“Separating parents rarely behave reasonably, although they always believe that they are doing so, and that the other party is behaving unreasonably,” said Sir Nicholas, adding: “Parents simply do not realise the damage they do to their children by the battles they wage over them.

“People think that post-separation parenting is easy – in fact, it is exceedingly difficult, and as a rule of thumb my experience is that the more intelligent the parent, the more intractable the dispute.

“So on the one hand there is parental unreasonableness: on the other a system which is simply not designed to address the issues which it is being asked to decide. These problems are best resolved outside the courtroom not in it.”

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Legal Aid Divorce Children The Bar