Access to justice is an important aspect of the operation of the Law. There is little point in giving people rights under the law if they cannot seek to enforce those rights through the courts where necessary. The Law infiltrates every element of our lives, it governs even the most basic of tasks we do each and every day and we give little thought to it. A person who is prevented from accessing justice based simply on the cost of litigation is an enormous failure; it devalues the rights of that individual if they cannot seek to enforce them. It is upon this basis that we provide legal aid to litigants who cannot afford the costs of litigation (in theory) and this extends to both the criminal and civil arms of the legal system.
Legal Aid is of course public money and in times where public expenditure is tighter than at any other time in the last decade the legal aid budget has had to take a share of the cuts imposed by Government. This has an impact upon access to justice as the only real way to cut the legal aid bill is to make it harder for people to gain public assistance in relation to cases before the courts. Efficiency savings alone would not give the savings expected by the Government in relation to the legal aid bill.
I was reading Ian Nisbet’s article on Yell.com yesterday evening around changes to civil legal aid that will have an impact upon the ability of children, and indeed students, to seek to have their rights enforced before the courts. Reading it gave me great concerns around access to justice for a group of people who are particularly vulnerable.
Prior to the changes to the civil legal aid rules if a child was seeking to enforce their rights through the courts, only their own assets and income would be taken into consideration. The normal position for a child is that they have no real assets or income of any real value and would therefore probably have qualified for legal aid automatically. Now, however, with their parent’s income and assets being taken into consideration the child may not qualify for legal aid. There are a number of issues with this.
Does the alimentary provisions extend to funding legal action?
The central idea to these rule changes is the alimentary provisions within the Family Law (Scotland) Act 1985. These provide that a parent has a legal duty to financially support a child until they attain the age of 18, or until the age of 24 where they “reasonably and appropriately undergoing instruction at an educational establishment, or training for employment, or for a trade, profession or vocation”.
Is such a change to the legal aid rules really what was intended when these provisions were drafted? Certainly when one looks at them in context it certainly does not appear that it was what they intended. However, the provisions now extend to the funding of legal actions (there are some exceptions to the rules, which I will come on to look at later). Does this duty upon the parents translate into the right that co-exists automatically? I would venture to suggest, most humbly, that it would. It would be the only logical option.
The options open to the child are not realistic
Assuming the parent is refusing to fund the legal action after the Scottish Legal Aid Board has refused funding for legal aid, what options does the child have? Well, the child could seek to challenge the SLABs decision in a judicial review. It’s not really a realistic option as Judicial Review is an expensive process and, well, the whole issue is the child’s inability to fund a legitimate action before the courts. The other obvious option isn’t all that practical either as it would be to sue their parents for the funds required…again we’re faced with the question of exactly how the child in question is able to do this given the issue at hand is their inability to fund a legal action.
The result is that for the child who has been refused legal aid and who is facing a barrier in relation to their parents funding the action they are effectively prevented from accessing justice to uphold and enforce their rights.
There is an exception provided for in the regulations. Regulation 3(b) of the The Civil Legal Aid (Scotland) Amendment Regulations 2010, in ammending the 2002 regulations provides: “Paragraph (1) does not apply if its application in the particular circumstances would be unjust or inequitable.”
This exception is important as it means that SLAB can, if it decides that to do so would be unjust or inequitable, ignore the requirement to consider the parent’s assets and income in deciding whether to grant a child legal aid. This may not affect the initial decision, but maybe it will affect the outcome of an appeal against a decision made to SLAB. It might be that once it is clear that the parents are going to refuse to fund the action and all other avenues have been demonstrably explored and ruled out that SLAB might just decide to reverse its original decision and grant legal aid. If it does not though, the issues described above may well come into play again.
As someone who does not actually practice law, but rather is still at the elementary stages of studying it, there may be things that I have failed to consider that are material to the above. I’m not writing this as a definitive guide to the issues surrounding the new legal aid rules, but rather, it is an expression of the concerns that I have as a result of my knowledge on the matter. Access to justice is vital to ensure that the law has real meaning. If a person cannot enforce their rights under the law then why have them at all? It’s as if they don’t exist in the first place!