THE BLOG

Why Replacing Lawyers With Law Students Won't Solve the Family Court Crisis

25/04/2014 11:14 BST | Updated 24/06/2014 10:59 BST

"The first thing we do, let's kill all the lawyers", wrote Shakespeare, and it would be fair to say a dislike of lawyers is almost as old as the legal profession itself. This is nowhere more so than in respect of divorce lawyers, so few tears will be shed at the thought of them losing work following the Government's latest initiative to launch a network of centres in which law students and trainees will guide separating couples before they appear in court. The aim, says the family justice minister Simon Hughes is to keep "lawyers out of the process as much as possible." However, there is a real danger that initiatives such as these could create real problems for the family justice system in this country, at a time where it is already under-resourced and overburdened.

These moves are in response to what is increasingly viewed as a time bomb in the family courts where more and more couples are unable to afford legal advice or representation when they divorce or separate. Figures released by the Ministry of Justice show that there has been a significant increase in the number of unrepresented individuals in children cases to the extent that in the last two months, over half of parties attending child-related proceedings did not have a lawyer. This follows the slashing of legal aid in family cases last year so that it is now only available in very limited circumstances, e.g. for victims of domestic violence. At the time, lawyers warned that this would lead to many people being unable to afford access to legal advice and unfortunately this has proven to be the case.

At the time, the Government claimed this was a necessary step, arguing that our legal aid system was too expensive, particularly when compared to other countries (although our spend expenditure on legal justice in general is comparatively low). It seems that the intention was that, by removing the ability for many to fund lawyers, together with a greater encouragement to use alternative means of resolving disputes, less people would use the courts following their separation. Except that hasn't happened. Certainly, where children matters are concerned, there has been an increase by 5% year on year in the number of people attending court, while the number of publicly funded mediations has reduced by almost half within the last year.

So we now have a system in which there has been no reduction in the use of the courts to resolve disputes, but with far fewer people using lawyers to assist them with that. Will this latest initiative make any difference? It is difficult to see how. While in a telling comment, Simon Hughes said he envisaged the role of these students and trainees will be to "hold the hands" of the divorcing couples to reduce confrontation in court. With all respect to the undoubted talents of these students, they will be expected to, with very limited experience, guide and support often traumatised people going through one of the most difficult experiences in their lives, as well as helping them navigate the somewhat complex collection of laws legislation and cases that make up our laws surrounding divorce and separation. This is no easy task for those with years of experience under their belts at the best of times.

In the interests of full disclosure, I am a divorce lawyer, and some will no doubt comment "he would say that, wouldn't he?" And of course few lawyers will want to see themselves replaced with students (although one could wonder how many law students and trainees there will be, if there are no jobs for them to go into). But this isn't about the well-being of the lawyers, but instead valid concerns about what is to happen to the thousands of people in this country who will not be able to afford legal advice. It's clear that cutting off access to lawyers won't lead to less people divorcing or separating, but without well-trained and experienced professionals help guide them through the process, there is the likelihood that a difficult situation will be made a lot, lot worse.

The reality is that most lawyers already worked hard to keep their clients out of courts, and were successful at steering them to alternative methods of resolving their disputes such as mediation and collaborative law which are proven to be more cost-effective and less confrontational, which is better for the family as a whole. Removing that assistance from the equation for those who cannot afford it is only going to make matters worse, and as ever with the law of unintended consequences, likely to lead to a greater cost in other areas.

There are other steps that can be taken to reduce the burden on the court system and help reduce conflict between separating couples, not least by making the divorce process less complex or confrontational by introducing no-fault divorce or making pre-nuptial agreements binding. But removing access to legal advice and providing minimal support will help solve neither.