Delivering Family Justice in Late Modern Society in the wake of Legal Aid Reform

Mavis Maclean

• Publisher: Taylor & Francis
• Year: 2018
• eBook ISBN: 9781315446264
• Edition: 1
• Topic: Law
• Subtopic: Arbitration, Negotiation & Mediation in Law
• Index: Law

Legal aid for family cases in private law, mainly divorce and separation, where the state is not directly involved as it is in public law cases where there are issues of domestic violence or neglect or abuse of children, came to an abrupt end together with help for welfare and immigration cases on April 1 2013 when the Legal Aid Sentencing and Punishment of Offenders Act (LASPO) came into effect. This book presents an account of the wide ranging problems which the researchers and practitioners expected to ensue. Sadly, their fears have been realised in many areas of legal help and advice. The National Audit Office was to take the view in 2014 that although the Ministry of Justice had succeeded in making considerable savings in the cause of austerity that they had failed to investigate or understand the impact of these cuts on the individuals concerned and society as a whole. This book was previously published as a special issue of the Journal of Social Welfare and Family Law.

Legal aid reform: its impact on family law

Stephen Cobb

Chairman of the Family Law Bar Association 2010–2011

This paper seeks to give an overview of the Legal Aid reform leading to the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”). It provides a context for the reforms heralded by consultation in 2010, and discusses the interplay with the simultaneous Family Justice Review. The paper goes on to look at the structural and constitutional changes brought about by the LASPO Act 2012, the impact on the Courts, and the removal of many cases from the 'scope' of public funding leading to the increase in the numbers of Litigants in Person. The paper discusses the ‘exceptional’ cases, the cases in which children are joined as parties, and mediation. The article looks briefly at the impact on the legal profession brought about by the legal aid reforms together with the reduction in fees under the Family Advocacy Scheme (also introduced in 2011).

Introduction

The modern legal aid system was established by the Legal Aid and Advice Act 1949, and has, since the passing of that legislation, been regarded as central in providing access to justice to many; it ensures equality before the law, and promotes and enhances the right to a fair trial. Over the 60 or so years since its inception, the administration¹ of legal aid as well its scope and structure has been modified and adapted to meet the needs of the public and the law; inevitably, given the greater complexity of the law, and the heightened awareness of Human Rights, legal aid has been made available in a wider range of areas. The Government perceives that expenditure has grown but in fact the legal aid budget has been contained since about 2003 (and has in fact dropped in real terms by about 11%). One of the biggest issues facing successive governments has been to contain the expenditure of legal assistance.

Unsurprisingly, at a time of significant economic crisis nationally (and globally), the legal aid budget was bound to be vulnerable to public spending review. Cuts were first identified in the Government’s Consultation document (Proposals for the Reform of Legal Aid) launched on 15 November 2010 and were forecast to be the most wide-ranging and deeply administered in the history of legal aid. Notwithstanding significant opposition to many of the proposed reforms, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (hereafter ‘the 2012 Act’) received Royal Assent in largely the same form (on family law funding) as had been foreshadowed by the consultation.

There is no doubt that the 2012 Act reflects the most radical revision of legal aid since the inception of the modern scheme. The legal aid cuts are likely seriously to affect the operation of the courts. There is a risk that cuts will impede access to justice for many of the most vulnerable people in society.

The Government introduced the legal aid reform programme some months after the fundamental review of the family justice system had been launched (this had been initiated by the previous government administration in January 2010, having been commissioned by the Ministry of Justice, the Department for Education, and the Welsh Government). This review – conducted by a panel chaired by David Norgrove – had been charged to look at all aspects of the family justice system. Specifically (see Annex A to the Interim Report for its complete terms of reference) it was expected to consider and advise on the promotion of informed settlement and agreement, and management of the family justice system. Inevitably effective management of the family justice system requires proper funding; this led, on one view, to tensions between the two reform programmes.

The implications of the legal aid reform on the administration of family justice, and on the Family Justice Modernisation programme (being overseen by Ryder J), are potentially extremely significant. In this piece, I highlight only some of the likely effects of the 2012 Act on family justice.

Legal aid reform in context

The proposals for the Reform of Legal Aid in November 2010 were said to be needed in order (in part) to manage the wider economic crisis which the Coalition Government had inherited earlier that year; the proposals were further said to be in part to achieve a ‘fundamental review’ of the legal aid scheme. It was reasonably clear from the Government’s Consultation that the primary objective was to demonstrate how the Ministry of Justice could save £350m p.a. by the year 2014–2015. The essential thrust of the proposals was essentially cost-saving, and the proposals did little to explore positive ways to achieve the delivery of publicly funded justice for the benefit of the public.

That all said, there was some uncertainty in the material produced about whether (a) £350m was ever indeed the true target figure, and (b) how that saving was actually to be achieved. The Cumulative Impact Assessment of the Consultation contained proposals which would have saved an estimated £395m to £478m once the full savings had been realised. Not only were the Impact Assessment(s) on which the consultation was based deficient in relation to financial data, the evaluation of the effects of the Government’s proposals on that (substantial) part of the legal profession which conducts criminal and civil legal aid work had been only superficially studied and (insofar as they had been appraised at all) had been seriously underestimated.

There could be little doubt that £200m could not be removed from the legal aid budget in family law (just under a third of the current legal aid budget in family cases) without creating an adverse impact on the supports upon which many victims of family breakdown rely. This was likely to create a domino effect of problems as citizens who have problems do not tend to have one problem; they tend to experience clusters of problems. One problem leads to another: family breakdown often casts one party onto welfare benefits, and creates housing issues, which in turn leads to mental health difficulties. Not only does the 2012 Act remove large numbers of those experiencing family breakdown from the scope of Legal aid to assist them in receiving family law advice, the Act also removes from scope many cases relating to welfare benefits², the vast majority of debt cases³, and almost all cases in the field of immigration will be excluded.⁴ As we know – because the Government recognises this – the Act will have a disproportionate impact upon women, on ethnic minorities and on people with disabilities⁵; 97% of legally aided parties now are in the bottom two income quintiles.

During the Legal Aid Reform consultation, and at all stages as the Bill progressed through Parliament, the Family Law Bar Association (FLBA) (of which I was Chairman at the time), warned of the irreversible loss to the public of the current range of publicly funded areas of law, how the courts will become gridlocked with litigants in person, and how that damage can be avoided. These warnings were regrettably in large measure unheeded. It was the view of the Family Law Bar Association that the Legal Aid Reform programme runs the risk of placing the family justice system (already stretched to breaking point) under yet more strain, aggravating the considerable difficulties facing those who currently seek effective access to family justice, and those who work in the field of family justice. Litigants, and potential litigants, need not only access to justice, but effective access to justice; as Article 47 of the European Charter of Fundamental Rights 2000 makes clear: ‘Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.’

In many instances those entering the family and civil courts are socially, intellectually, emotionally and/or economically very vulnerable. If there are difficulties and obstacles in seeking the advice they clearly require, in many cases the only alternative will be to abandon justice – compromising the very rights and freedoms which underpin our society and, more worryingly, imperilling the lives of vulnerable.

Legal aid reform and the Family Justice Review

The Government – in launching the legal aid reform programme – rightly acknowledged the valuable work of the Family Justice Review (FJR); it recognised that the FJR was actively considering options for a quicker, simpler, more cost-effective and fairer system, whilst continuing to protect children and vulnerable adults from risk of harm.⁶

The Government maintained that the proposals for the reform of legal aid ‘complement the aims’⁷ of the FJR. While acknowledging that both reform programmes examined conscientiously the benefits of out-of-court settlement and mediation, in significant respects the reform programmes were arguably operating in opposite directions. In the first instance, the FJR itself proposed⁸ a radical re-organisation of legal aid – namely that it be part of the overall budget of the Family Justice Service:

Family legal aid is a major part of the government spend on family justice. Were it managed as part of the overall family justice budget there would be opportunities to shift money between activities, from court work to mediation for example. The Family Justice Service should manage relationships with mediators, legal providers and experts. In time, with responsibility for the legal aid budget, it could procure their services.

Yet the Government forged ahead with its legal aid reform plans while this fundamental review of the family justice system was being undertaken. In this respect, the Government made clear that the legal aid reform proposals were ‘stand-alone proposals and … not dependent on the implementation of those wider reforms’, including the FJR reforms.⁹ Yet the two reform programmes were in my view inextricably bound together; the work of the FJR was undoubtedly more profound and far-reaching.

By way of example (as discussed more fully below), the removal of large numbers of people from the scope of legal aid will inevitably bring many more litigants in person into the family courts (discussed further by Barton, this issue); this will have the inevitable and serious consequence that the courts will become more densely populated with unrepresented parties. The FJR focused in particular on addressing (and removing) the weaknesses from the system, and building on its strengths; in this respect, the FJR (in its interim report) observed:

Proposed changes to legal aid, should they go ahead, will mean more people choosing to represent themselves as litigants in person. Th...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Citation Information
• Notes on Contributors
• Introduction: Late modern justice for the family
• 1. Legal aid reform: its impact on family law
• 2. Analysing the economic justification for the reforms to social welfare and family law legal aid
• 3. Self-represented litigants: the overlooked and unintended consequence of legal aid reform
• 4. Changing the immigration rules and withdrawing the ‘currency’ of legal aid: the impact of LASPO 2012 on migrants and their families
• 5. The impact of cuts in legal aid funding on charities
• 6. Back for the future: a client centred analysis of social welfare and family law provision
• 7. Arbitration in financial dispute resolution: the final step to reconstructing the default(s) and exception(s)?
• 8. When legal rights are not a reality: do individuals know their rights and how can we tell?
• Index