Father calls for States to fund legal aid

Monday 10 December 2018

A father whose newborn daughter was taken away from him as a result of what he believes was “negligent” legal advice has called for the States to fund legal aid in Jersey after his traumatic experience of the current system “changed his life fundamentally.”

His plea comes amidst a campaign launched by the Law Society to get the States to fund legal aid in Jersey rather than relying on the goodwill of the legal profession.

Having experienced first-hand the disastrous impact an unfunded legal aid system can have, one father shared his story with Express...

Michael* was “a poor student” when he became a father, but he didn’t have much chance to get to know his new born baby before its mother told him of her plans to take their child away to live in Europe. 

Pictured: Michael was told by his former partner that she intended to take their child away to live in Europe.

Ready to fight for his child to stay in Jersey, Michael applied for legal aid and was appointed an English solicitor employed at “a large and well-known Jersey law firm.”

Michael recognises the obligation of local lawyers written into the Law Society’s code of conduct that, “...Jersey Advocates are required to do their best for their legal aid clients and are not allowed to distinguish in terms of their service between unpaid legal aid clients and paying, private clients.”

He also acknowledged that “some lawyers... do do their very best for their clients, even if it is on an unpaid legal aid service.”

However, this was not his own experience.

After Michael’s first and only meeting with his appointed legal aid lawyer, he received a phone call from the Solicitor: “I was told that it was a pointless exercise... and that given that there was no chance of me winning... that I should forget it.”

Pictured: Michael's appointed lawyer told him that it was "pointless" to try and stop his child being taken away from him and that he "should forget it".

Under the impression that his case was “hopeless” and that “there was nothing [he] could do”, Michael’s newborn baby was taken away to Europe. Without parental responsibility or any contact orders as he and the baby’s mother were never married, Michael was forced to contemplate the uncertainty of his future relationship with his child.

“In circumstances when I was already emotionally very bruised... what I really needed at that low ebb was someone to do their best by me, to acknowledge that I was vulnerable, to sit me down and explain in detail the options; not to crush my spirit with a brusque, two-minute phone call.”

Michael argues that the current, unsubsidised legal aid system puts lawyers in an “unfair position” and therefore makes way for the kind of negligence he believes he encountered: “There is a conflict or tension between the lawyer’s obligation to provide a free service to clients on the one hand and their own livelihood on the other.”

Michael explained that if a lawyer prioritises their legal aid clients, “they are not able to service their paying clients,” meaning they “...are not generating any income” for their firm and “may make themselves redundant.” 

Commenting on the impact of this lawyer’s advice, Michael told Express: “My life changed fundamentally as a consequence.” 

Pictured: After his experience, Michael is calling for the States to fund legal aid to ensure everyone has access to competent legal advice.

Taking every opportunity to see his child, Michael spent the first 16 years of their life travelling over to Europe, using up his holidays and disposable income. In the meantime, he paid out €30,000 in legal costs to fight for parental responsibility and contact with his child – a case which he eventually won despite the proceedings being carried out in a language he did not understand.

“I understand now, many years later, that the advice given to me was as negligent as it was cursory. I understand now that my case was not hopeless. There was a chance, however small, that the Jersey courts may have not have allowed my child’s mother to take them to Europe and away from me and their family in Jersey.” 

When asked what changes he would want to see to the current legal aid system, Michael said: “If the States of Jersey wish to ensure that its citizens are spared the trauma to their lives that my child and I have had to endure... then [they] must fund these essential legal services. The alternative is that more people such as my child and I are at the receiving end of injustice.

“The States should ask themselves whether they wish to be a just and fair society fit for the 21st century. If the answer to that question is yes, they need to do away with an unpaid, archaic legal aid system created over 100 years ago and provide a funded legal aid system for its citizens.” 

* Name changed to protect anonymity