As I said in my post here yesterday, the legal aid cuts are likely here to stay. Depressing as it may seem, legal aid is unlikely to ever return to the levels seen before to the cuts. However, is it possible that the cuts could be reversed in a limited way, in order to mitigate their worst effects? This is the question examined by the Family Law Bar Association (FLBA) in their recent briefing paper Access to Justice in the Family Court. The primary purpose of the paper is to explain to all candidates in the forthcoming General Election how the changes to civil legal aid under the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) are causing injustice to many children and their families.
The briefing paper sets out what the FLBA considers to be “the minimum steps required to restore access to justice to the most vulnerable”. I will not go through them all here, but they do contain some very interesting ideas.
The FLBA points out that before LASPO there were litigants in person (LiPs) in the Family Court, but they were more likely to be employed people with a level of ability to articulate issues and engage in the court process. However, post- LASPO those who are least able to represent themselves are forced to engage in the court process without the benefit of any legal advice. As the FLBA say, the President of the Family Division Sir James Munby made this very same point when he gave evidence to the House of Commons Justice Committee. He said:
“Previously we had a lot of litigants in person who were there through choice. They tended to be people who had a particular point of view, but who understood the case, were articulate and had the confidence to appear in court. We now have a lot of litigants in person who are there not through choice and who lack all these characteristics.”
The Ministry of Justice, say the FLBA, assumed that the system could absorb more LiPs without adverse effects, as long as more information was made available to them. However, says the FLBA, this failed to recognise the limitations of the litigants involved. Information may be useful to better-educated prospective litigants, but:
“The combination of poor education, lack of confidence and the emotional stress of family breakdown renders many prospective litigants in the Family Court unable to make effective use of information without advice about how the law applies to their particular circumstances and the best way to resolve their problem.”
What is to be done about this?
The FLBA point out that prior to LASPO the financial eligibility threshold for legal aid was already low, having been gradually lowered over the three years prior to 2013. Post-LASPO things are even worse. As a result, there are many people who are now financially ineligible for legal aid but who clearly do not have sufficient income to be able to afford to pay for representation either. The FLBA are therefore urging whoever is in power after May the 7 to reinstate the pre-LASPO financial eligibility criteria.
Coupled with this, and perhaps the most interesting of their proposals, the FLBA call for the next Government to reinstate ‘Legal Help’ (which provided the client with basic advice and assistance, but not representation in court) in private law cases for those who were eligible pre-LASPO, so that at least initial advice can be provided. This tailored advice will be much more useful to the LiP than basic general information, would mean that more people were directed towards mediation by way of lawyer referrals and would make it more likely that mediation can succeed, as the parties will have a better understanding of the issues involved.
Amongst the FLBA’s other recommendations, they say that those who suffer abuse or have a learning difficulty or disability should be assisted and protected. In particular, those who are abused should have representation, so that they do not have to face cross-examination in court by their alleged abusers.
Will any of this come to fruition? Well, the FLBA maintain that their proposals are affordable, pointing out that the savings from the cuts have been greater than expected. They conclude by saying that public spending on private cases is a tiny part of the overall budget, but the potential for greater burdens on the Family Court, the NHS, the criminal justice system and social care is incalculable. Hopefully, the next Government will see the truth in this.
Read the FBLA paper here.