A mother fighting to see her son for the first time in five years says she has been abandoned by the system, with 30 solicitors unable to take on her case. 

Jackie's son, Alfie*, lives with his father. Despite a court order saying the boy should see his mum, the dad has refused. 

She has not seen or spoken to her child for five years. 

Although Jackie is likely to be entitled to legal aid, no solicitor has taken on the case.

“They have all said they don’t have capacity and just nobody wanted to help me," she said.

"I’ve just been calling and calling... I went through 30 different solicitors across Scotland and still nothing. 

“I can’t see my son at the moment. I can’t help him and I can’t help myself. It’s just brutal." 

Jackie believes the father is subjecting her to parental alienation, a strategy where one parent intentionally displays to the child unjustified negativity aimed at the other parent. 

“There are no words to describe how I feel." Jackie said, "Not seeing my son and not having any kind of help. I just feel the system doesn’t work. It all feels like a tragedy.” 

READ MORE

Jackie has been living in Scotland for 16 years. She’s originally from Poland and struggles with understanding court procedures. 

“The sheriff said we could change the court order if the father will not follow it but I can’t take it to court because I just don’t know how to do all the procedures and English is not my first language," she said.

"It’s all so difficult.” 

The mother of three says she urgently needs someone to support her through the legal system and wants to see the government ensure more lawyers take on cases like hers. 

Ian Maxwell, national manager of Shared Parenting Scotland, says Jackie's case is not unusual. He says more parents are self-representing or walking away from court action altogether due to the lack of solicitors taking on legal aid cases.

The number of lawyers registered for children’s legal aid has dropped from 831 in 2021 to 621 this year, according to data from the Scottish Legal Aid Board.

Mr Maxwell told The Herald: "The crash in availability of solicitors willing to take on legally aided clients in family cases has resulted in poorer access to justice.

"That isn't right for parents or their children. The crisis is calling out for more effort to promote alternatives to court for the many cases that don't need to be there."

The Scottish Child Law Centre says the legal aid system is becoming increasingly restrictive for many of the people they support. 

The centre has faced a 250% increase in demand for free legal advice from January 2024 to July 2024.

READ MORE

This August, they received a record 313 enquiries and at the moment service demand is averaging around 250 to 300 requests.  

Jamie Speirs, a senior solicitor at the centre said the increase in demand is down to “restrictive” legal aid access.

She said those who come to the centre either cannot find a legal aid solicitor or they cannot afford the cost of a private lawyer. 

“When families email us they are in crisis.”, Ms Speirs said: “They are often living in poverty and we are often their last port of call. Sometimes they’ve tried upwards of 30 different firms for legal aid.”

Solicitor Jamie Speirs says people are being left in limbo (Image: contributed)

The senior solicitor said there are also “a lot of people left in limbo” as the bar to qualify for legal aid is “too low”. 

To qualify for legal aid in Scotland, your capital — savings and other valuables — must be worth less than £1,716.

The last time a review was done into the means-testing of legal aid was in 2011. 

Ms Speirs who used to be a practising legal aid lawyer said: “For a private solicitor you are looking at at least £250 an hour to get advice and representation and the firms I’ve worked for usually ask for an upfront payment of £1,000. That’s a huge amount for anyone.” 

The Child Law Centre supports people with legal advice but cannot offer legal representation as it does not have the capacity to take on cases. 

“We’re bogged down in inquiries and we can’t meet everyone’s needs.” Ms Speirs said: “We can tell them what their rights are and what the law is but after that how do you put those rights into practice? We can’t answer that.” 

Ms Speirs explained: “Our role is quite limited with these complex child law issues because your next step after coming to us is that you may have to raise a court action yourself and it's a complex and stressful issue and they shouldn’t have to do that. This issue of access to justice is massive.” 

“It’s a beyond crisis situation and so it’s left to organisations like us to pick up the slack.

"The Scottish Government needs to take the legal aid crisis seriously because there are rights breaches happening across sectors and it doesn’t seem as though this is a really big priority for them. People like us on the ground are seeing people who are in poverty and are struggling.” 

In the Summer, Scotland became the first part of the UK to incorporate the United Nations Convention on the Rights of the Child (UNCRC) into law.

This now means all Scotland’s public bodies, including the Government, must seek to protect children and young people’s rights. It will also allow children and young people to use the courts to enforce their rights.

However, Ms Speirs said the incorporation of the UNCRC can only make a difference if legal aid can be made to work. 

Ms Speirs said: “There was a lot of celebration and back-patting by decision makers when they brought in the UN convention on the rights of the child into domestic domestic law.

"Access to justice is a cornerstone of the UNCRC but so many people can’t access this because the legal aid system is not fit for purpose."

She added: "It’s great to have it in law but unless children can realise their rights what is the purpose of it. We are all worried about the future at the centre and I worry this problem around legal aid is only going to get worse.” 

Last month, the Scottish Child Law Centre released their Access to Justice Report which calls for an update to legal aid means-testing and for the application process to be simplified.

The centre also wants to do away with legal aid applications for anyone who is 18 years-old or under so they automatically qualify for the provision.  

Ms Speirs said: “There’s a cost of living crisis and the amount of people who will depend on free legal advice and representation is only going to increase. We need to expand access to ensure more people are eligible for legal aid.

"We also need to simplify the application process for legal aid. It can take months for a legal aid certificate to be granted by the legal aid board and in the meantime you can’t make any progress in your court action without it."

The Scottish Child Law Centre is also urging the Scottish Government to ensure “appropriate funding” is allocated for a review and reformation of Civil Legal Aid.

READ MORE

Ms Speirs worries ministers are not treating the issues around legal aid as a matter of urgency.

“I don’t feel as though we are being listened to and I don’t feel as though we are being taken seriously.” Ms Speirs said, “It seems like fixing legal aid is not a priority and it’s impacting the most vulnerable people we help, mainly children and young people who are marginalised and living in poverty.” 

“We’ve done all the hard work through our report. All that needs to be done is for the Scottish Government to put our recommendations into practice.” 

A Scottish Government spokesperson said the government recognises the legal aid system “needs improvement and reform”. They went on to say ministers want to “work with key stakeholders, including the Scottish Child Law Centre, to do so.”

The spokesperson added: “Despite extremely challenging financial circumstances, the Scottish Government continues to meet all legal aid costs in full. The cost of providing legal assistance in 2023-24 increased by 12% on the previous year to £151 million.

“An £11 million package that increased fees for legal aid lawyers was implemented in April 2023, bringing the total additional funding to legal aid providers to £31 million since April 2021, and the number of active legal aid solicitors remains broadly similar in the years 2020-21 to 2023-24.”

*Names have been changed to protect their identity.