This is a guest post by Dr Jess Mant, Lecturer in Law at Cardiff University School of Law and Politics. Jess has been researching the impact of LASPO on domestic abuse cases in family courts for the last ten years. Her evidence to this recent parliamentary inquiry can be read here. It is cited in thr report at paras. 103-104. Jess tweets as @DrJessMant1

2021 marks ten years since the government published proposals for the Legal Aid, Sentencing, and Punishment of Offenders (LASPO) Act 2012, which went on to remove private family law almost entirely from scope of legal aid funded advice and representation. Since then, one thing has become clear: the landscape of family justice has become even more chaotic and fractured. Firstly, despite the government’s efforts to incentivise the use of mediation, many more families are foregoing this option and instead pursuing cases in the family court as Litigants in Person. The majority of these cases involve disputes over children. Secondly, lawyers and advisers in an already-pressured legal aid sector are forced to come to terms with the fact that they cannot meet the now-overwhelming demand for free advice from these families after LASPO.

These consequences, in turn, hold several repercussions for families, who may struggle to access appropriate outcomes through self-representation, and may have problems which escalate into far more serious or complicated matters as a result. The family justice system itself is also buckling under the strain, as legal aid providers go out of business, and the court system strives to support so many more litigants within the confines of a “full-representation” model that assumes each party has a lawyer throughout proceedings. The scale of these problems, and any possible way forward for family justice, is still unknown.

On 27 July 2021, the House of Commons Justice Committee published the findings of their Future of Legal Aid inquiry. This inquiry sought to comprehensively draw together the core underpinning problems with the current legal aid system. The final report is based on over 80 written submissions of evidence from experts and practitioners across civil and criminal law, as well as several oral evidence sessions where key issues were discussed in more depth. The report identifies a series of possible solutions that would do a great deal to improve the long-term future of legal aid.

In terms of family law, the report emphasises that legal aid has an important role to play in ensuring access to justice in the still-unfolding post-LASPO context. While some may have expected this report to simply add to a vast existing literature that continues to call for the reinstatement of legal aid, it actually makes a more targeted and pragmatic recommendation about the possibility of investing in early legal advice for helping people to avoid court in the first place. This approach is potentially very useful and important for convincing cost-conscious policymakers that legal aid still has a role to play within the family justice system. However, in making this argument, the Future of Legal Aid inquiry has also tapped into a much broader policy debate that has been bubbling in the background of family justice since LASPO: that is, whether law itself has any role to play within family law disputes at all.

Early Legal Advice and Litigants in Person

In terms of legal aid for family law, the Inquiry report focuses on two key areas: the urgent need for action to support Litigants in Person who find themselves in the court process, and the potential value of state-funded early legal advice for helping people to avoid court in the first place.

On one hand, practitioner organisations like Resolution argue that early legal advice would give parents a meaningful understanding of their legal position and dispute resolution options, as well as a “reality check” on what could realistically be achieved if they pursue their cases in court. This is reinforced by significant existing research by academics including Anne Barlow and Mavis Maclean, who suggests that early legal advice would help more families to make use of mediation, and to resolve their problems more quickly – avoiding the risks of escalating problems. (On this, see also: Barlow et al. Mapping Paths to Family Justice (Palgrave 2017) and Mavis Maclean and John Eekelaar, After the Act: Access to Family Justice after LASPO (Hart 2019) ).

This rationale has, to a degree, already been accepted by the government, who indicated in their post-legislative review of LASPO that:

“Prior to LASPO, the majority of referrals to mediation were made by legal aid funded solicitors. The removal of private family law from the scope of legal aid removed the opportunity to refer cases towards mediation.” (Para 613).

Those who advocate the value of early legal advice, therefore, accept that there is no political appetite to restore legal aid to its previous state, but nevertheless argue that limited investment in legal aid for targeted sessions of early legal advice would provide at least a partial solution to the various problems currently unfolding within the post-LASPO family justice system.

On the other hand, there are others who do not believe that legal advice provides a way forward for disputing parents. Evidence submitted by National Family Mediation suggests that although separating couples require expert input, they do not necessarily require “legal” input. This alludes to a similar position already advocated by the Family Solutions Group, a sub-division of the Private Law Working Group. In their 2020 report, they recommended a different form of “early triage” for addressing disputes over children before they escalate into serious issues that inevitably end up in the family court. Termed “Information and Assessment Meetings”, these interventions would be an opportunity for families to receive tailored information about their options, and an understanding of what is expected of them in terms of parental responsibility and future co-parenting. Importantly, the report is explicit in disavowing the notion that this meeting needs to involve legal advice, or indeed the idea that disputes involving children have any legal dimensions at all:

“…while legal information may be helpful to understand the legal context, being directed to a legal professional enhances the view that parenting disputes are legal issues. In private law children cases where there are no safety issues, the aim is to reframe disputes away from being ‘legal issues’ and into ‘parenting disagreements’ instead.” (Para 193)

Taking all of this together, it is possible that the focus of this inquiry about the future role of legal aid in family justice may, in fact, be overshadowed by a much broader debate about whether law itself has a legitimate role in family disputes.

Where is the Law in Family Law?

The Future of Legal Aid report ultimately recommends that the government should consider developing and piloting an early advice scheme, funded through legal aid, to help families understand their legal position and access alternative dispute resolution options, where appropriate. They suggest that this, in combination with separate action to support those families who still appear unrepresented in family courts, would go some way towards ensuring a more stable state for family justice.

However, the opposing perspectives evident in this report suggest that the value of legal advice is no longer assumed by all. There are a range of possible ways forward for a post-LASPO family justice system. As I have argued elsewhere, LASPO was not the first reform to disrupt family justice – rather, it simply exacerbated long-standing problems to such a degree that we are only now beginning to ask questions about what the family justice system should look like in the future. Targeted legal advice is one option, but so is a significant overhaul and redesign of the court process so that it may suit lay individuals, rather than continuing to ignore the fact that legal professionals no longer make up the majority of court users. In essence, what happens next is relatively unknown, and still subject to debate.

The narrative that private family law problems should not be conceptualised as legal problems, however, is a potentially perilous route that should be regarded with significant caution for three reasons. Firstly, it risks further entrenching the already problematic distinction between public and private family law cases. Research already indicates that as many as 49% of child disputes in the family court involve allegations of domestic abuse, and in reality, “hybrid” cases (private law cases with public law elements) are an increasingly common phenomenon in this context. By positioning private disputes as non-legal “disagreements”, we run the risk of underestimating the frequency of these very serious issues and delaying opportunities for individuals to obtain urgent and necessarily legal remedies and protections.

Secondly, family law plays an integral role in terms of providing guiding principles to inform private negotiations and agreements. Family disputes are never purely ‘private’ disagreements in which only those involved have an invested interest in the outcomes. Rather, post-separation arrangements regarding children will always hold wider consequences for society as a whole. A framework of legal principles helps to ensure that children’s welfare is promoted and that their parents both have sufficient resources to care for them, and in many cases, family law plays an important role in ensuring an equality of arms between parties as they negotiate suitable arrangements. Leaving the law out of family disputes risks perpetuating power imbalances and undermining opportunities for families to effectively negotiate by themselves.

Finally, this narrative also undermines the important role of the family court within the wider family justice system. It is unquestionable that many of those currently self-representing in court may be better off if they had been able to make use of alternative dispute resolution, and it is also true that litigation has the potential to exacerbate family problems, by entrenching conflict and potentially extinguishing any hope of positive future relationships between separated parents. But this does not erase the reality that the family court is, for some individuals, the most appropriate and effective route to resolution. The family court has traditionally operated as a safety net for families for whom alternative dispute resolution is inappropriate or ineffective, providing essential intervention to secure and stabilise some of the most chaotic and difficult circumstances for both parents and children. Conceptualising family disputes as disagreements instead of legal problems runs the risk of undermining the importance of ensuring that this safety net is accessible for those who require it.

Conclusion

The Future of Legal Aid report marks the first of several legal aid inquiries and reports due over the coming months. By the end of the year, we expect to see the results of the government’s means test review, the outcome of the APPG inquiry into the sustainability of legal aid, and the findings of the first ever Legal Aid Census. All of these will help us to build a more detailed picture of the current landscape of family justice, and are likely to provide further evidence regarding the potential utility of even targeted amounts of legal aid as a solution to at least some of the problems that underpin the post-LASPO family justice system. When drawing this data together, however, it may be useful to bear in mind that for some, the challenge is not simply to make a justifiable case for investment in family legal aid, but rather a much broader case about the role of law in family disputes.

Image: Thanks Picture Capital – Creative Commons licence at Flickr