The Bach Report: (5) Family Law

This is the third in the new series of blogs which will start with relevant extracts from the Bach  Commission’s Final Report. These will be followed by  the more detailed treatment I gave to the topic  in one of the chapters in Appendix Five to the Report

I wrote the papers in this Appendix because I was keen not to lose the opportunity to provide in-depth treatment of important issues for which there would clearly be no room in the report itself.

 Family Law

1. Extracts from the Report

1. Evidence requirements

[T]here is also an urgent need to reform the domestic violence gateway, the screening mechanism for accessing legal aid in family cases introduced by LASPO. The gateway’s excessive stringency and its very precise evidence requirements means that many people who had suffered domestic violence were unable to access legal advice. The Centre for Law and Social Justice in their evidence to the commission wrote that the:

“narrowness of the evidence requirements for legal aid funding in these cases means that many victims of financial, sexual and emotional abuse as well as less overt physical abuse, who are often unable to obtain the required evidence, are now faced with the prospect of self-representation if they need to access the family court.[1]

Rights of Women showed in 2014 that 43 per cent of women who had experienced or were experiencing domestic violence could not produce any of the forms of evidence that were at that time prescribed in order to access legal aid.[2]

In 2016 some of the gateway’s original evidence requirements were ruled unlawful and the rules have since been relaxed. Evidence of domestic violence that occurred up to five years before the application is now admissible, the range of acceptable supporting evidence has been extended, and evidence of financial abuse may now be accepted as constituting domestic violence. The commission welcomes these developments, and hopes that the constructive discussions over further liberalisation with which the Ministry of Justice was involved before the June 2017 general election will be continued.

The commission recommends further liberalising reforms to the domestic violence gateway. In particular, solicitors, legal advisers approved under a legal aid contract, and frontline domestic violence support organisations should be able to confirm that an individual is a victim of domestic violence.[3]

Jenny Beck, an experienced family lawyer and co-chair of the Legal Aid Practitioners’ Group told the commission that “the general election stopped a remedy being provided for the cases in which an abusive husband who is unrepresented now cross-examines his victim.” A remedy for such a serious abuse of justice as this should be found as a priority. A remedy should also be found to the injustice caused by an unrepresented party having to mount a defence against allegations of sexual abuse by a represented party when the allegations are denied.

2.  Early legal help

One of the most damaging aspects of the cuts to scope has been the withdrawal of legal aid for early legal help across a number of areas. It is also one of the least cost effective cuts. Whether housing help or advice about a family breakdown, an early understanding of how the law can help resolve problems can help prevent significant distress downstream. It will also save the state money; the pressure on welfare services, for example, from a homeless person far exceed the cost of early help. As Lord Low told the commission, early legal help should be valued for “its preventative value”.[4]

In part one, we proposed a new right to ‘reasonable legal assistance’ not just access to justice in the courts, precisely because early help has suffered so disproportionately. Immediately, we recommend that the government returns to pre-LASPO levels for several areas of early legal help, which we are convinced will in the long term ensure significant savings for the exchequer. This should include all social welfare law (including debt, employment, welfare benefits, immigration and housing), family law, for prisoners in appropriate cases. Early legal help is particularly important in the following areas of law:

Family: As organisations like Resolution and individuals like Jenny Beck told the commission, early legal help in family law increases the uptake in mediation, and thereby reduces the demand on court time. It also enables parents to understand that the interests of their children are of paramount importance following a breakdown in their relationship.[5] Colin Stutt, former Head of Funding at the Legal Services Commission, told the commission, “[with] family legal aid – a little early help goes a long way.” Without it, people pursue “unnecessary proceedings”, at great cost to the court system.[6] The Law Society estimates that restoring early legal help for family cases will cost between £9.8m and £14m. [7]

3. Widening the scope of funded legal representation

Family law: The greatest change in the civil legal aid regime brought about by LASPO occurred in the field of family law. Legal aid was withdrawn in all private law family cases unless the applicant qualified for legal aid through an exceptional ‘domestic violence gateway’. The scale and impact of these changes has been enormous. There are nearly a quarter of a million fewer people now receiving legal help in family cases each year than there were in 2009-2010.[8] LASPO introduced legal aid help for family mediation cases as a partial remedy to the reduction in scope for the rest of family law. But it is clear this policy has failed; in 2016-2017 assistance for family mediation was provided in just 279 cases.[9] Similarly, the exceptional case funding grants that were intended to mitigate the cuts and correct injustices have been barely used. In 2016-2017 only 303 applications were made and 98 grants awarded across all family cases.[10]

When family law disputes reach the courts, people who cannot afford private legal support are either giving up on justice altogether or are forced to become litigants in person, representing themselves in court.[11] As the Consortium of Expert Witnesses in Family Courts wrote to the commission, this means that they have “no access to representation or to expert reports, so that they and their children are denied justice in serious matters concerning sexual, physical, and emotional abuse, and neglect.” [12]

 The commission therefore recommends that family law cases with the following characteristics are brought back into the scope of civil legal aid:

  1. representation in particularly sensitive areas of private family law (such as cases in which the primary care of a child is in dispute)
  2. cases involving an application to remove a child from the jurisdiction
  3. cases where there is local authority involvement in private law children proceedings
  4. cases in which an allegation is made which is so serious it would be unjust not to provide legal representation to defend it
  5. cases where the question of whether a child should have any contact with a parent or grandparent is in dispute
  6. cases where a court determines expertise is necessary to decide a family case in the best interests of the child, but where the non-legally aided party is not in a position to pay a contribution towards that expertise.

 

2. Appendix 5

Chapter 2 Family Law

Introduction

The greatest changes in the civil legal aid regime occurred in the field of family law. Legal aid was withdrawn in all private law family cases unless the applicant qualified for admission through what was called the domestic violence gateway.

Subject to this exception, legal aid was no longer to be available in “financial relief” cases[13] or “children and family” cases.[14]

The following categories of case remained in scope:

  • Domestic violence and forced marriage cases;
  • International child abduction;
  • International family maintenance;
  • Representation of children if a judge made them a party to the proceedings under Rule 9.5 of the Family Proceedings Rules 1991.

Legal aid would only be available for appeals in higher courts in the categories of case for which it remained in scope.

The scale of these changes is reflected in some of the recent statistics published by the Legal Aid Agency (LAA):[15] those that cover the baseline year (2009-10), the last pre-LASPO year (2012-13), and the first four years of the LASPO regime.

The first two Tables show that nearly a quarter of a million fewer people now receive legal help in family cases (when compared with the baseline year), and that annual savings of £52 million were achieved. The numbers who receive help with family mediation (an important feature of the government’s pre-LASPO plans) are trivial.

Volume of cases

Legal Help & Controlled Legal Representation

Private law family Help with family mediation
2009-10 250,568
2012-13 181.475
2013-14 98,236 61
2014-15 30,584 306
2015-16 16,992 325
2016-17 13,922 279

Value of cases (£’000s)

Legal Help & Controlled Legal Representation Private law family Help with family mediation
2009-10 55,781
2012-13 34,823
2013-14 20,076 15
2014-15 7,084 66
2015-16 3,309 73
2016-17 2,211 64

 

The next two tables show that the number of grants of civil representation in domestic violence cases (which were not removed from scope) have been reduced since the baseline year, and that savings approaching £160 million have been achieved in the cost of representation at court.

Volume of cases

Civil Repn[16] Domestic Violence Financial Provision Other family proceedings Private law Children Act proceedings
2009-10 19,111 17,843 1,039 46.684
2012-13 15,173 7,533 1,117 44,874
2013-14 14,262 6,852 1,197 44,221
2014-15 14,839 4,784 767 25,392
2015-16 12,709 2,395 365 13,253
2016-17 12,693 1,446 226 10,035

 Value of cases (£’000s)[17]

Civil Repn[18]

Domestic Violence Financial Provision Other family proceedings Private law Children Act proceedings Totals
2009-10 50,610 43,523 3,551 161,996 259,680
2012-13 47,147 29,983 4,335 174,945 256,410
2013-14 42,240 25,019 6,022 157,838 231,119
2014-15 41,118 18,223 4,038 124,465 187,844
2015-16 36,957 12,018 2,428 80,218 131,621
2016-17 35,832 7,690 1,727 58,082 103,331

Exceptional Case Funding (family cases)

A final table shows that the number of Exceptional Case Funding (ECF) grants in family cases remains miniscule, despite the liberalisation of the ECF regime two years ago, and the initial forecast that up to 5% of most proceedings in “other” private law family cases would be readmitted to scope with ECF funding.

Applications Grants Success Rate
2013-14 819 9 1%
2014-15 464 48 10%
2015-16 394 156 40%
2016-17 303 98 32%

The Court of Appeal has explained the principles on which ECF must be granted:[19]

  • The Convention guarantees rights that are practical and effective, not theoretical and illusory in relation to the right of access to the courts;
  • The question is whether the applicant’s appearance before the court or tribunal in question without the assistance of a lawyer was effective in the sense of whether he or she was able to present the case properly and satisfactorily;
  • It is relevant whether the proceedings, taken as a whole were fair;
  • The importance of the appearance of fairness is also relevant: simply because an applicant can struggle through “in the teeth of all the difficulties” does not necessarily mean that the procedure was fair;
  • Equality of arms must be guaranteed to the extent that each side is afforded a reasonable opportunity to present his or her case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent.

Given that these criteria are certainly satisfied in many private law family cases in which unrepresented litigants are currently being left to struggle on their own without lawyers,[20] the vanishingly small number of grants of ECF in family cases since these principles were explained appears to show that specialist providers have given up considering it as a practical way in which their clients can be helped.

The Domestic Violence Gateway

The Commission received a huge volume of evidence that contained criticisms of what was regarded as the capricious regime that controlled admission to the domestic violence gateway.[21] Since LASPO, however, this regime has been significantly relaxed in many important respects,[22] and before the June 2017 General Election the Ministry of Justice was involved in constructive discussions over ways in which the regime might be further liberalised. Evidence of domestic violence that occurred up to five years earlier is now admissible, the range of acceptable supporting evidence has been greatly extended, and evidence of financial abuse may now be accepted as constituting domestic violence.

Rights of Women complained, however, about the fact that only the survivors of domestic violence were deemed to need legal advice and representation. Other vulnerabilities were not taken into account. Women with disabilities, mental or physical illness, language, educational, financial and social barriers were not deemed to require legal advice or representation in order to conduct litigation. They said that it was unconscionable that a destitute woman who did not understand English should be required to draft her own evidence or be expected to understand and comply with orders of the court.[23]

The effect of LASPO and of the fees charged in family law cases

The Consortium of Expert Witnesses in Family Courts told the Commission that their biggest current concerns post-LASPO came were that:

  • Increasing numbers of parents in private law cases are litigants in person[24] and have no access to representation or to expert reports, so that they and their children are denied justice in serious matters concerning sexual, physical, and emotional abuse, and neglect.
  • When expert witnesses are instructed in private and public law cases, the scope of their reports is driven by financial cuts, so that they often have only a limited number of documents made available to them, and they are only allowed limited interviews with family members; when they request more time for complex cases, determinations are made by non-clinical Legal Aid Agency staff, who routinely over-ride the decisions of the Judge who knows the case first-hand.
  • Many highly-experienced medico-legal experts from all disciplines have abandoned or restricted their Family Court work because of the rate cuts, the insufficient hours that are allowed to properly undertake an assessment properly, and the difficulty in collecting payment from multiple parties responsible for paying bills; as a result experience built up over years in the Family Courts has been lost.

In its powerful evidence the Consortium also said:

“Access to Justice is limited not only for families who cannot obtain representation, but also for families who are publicly funded, but suffer from the cuts now imposed to our work with them.

LASPO has undermined and in some areas destroyed the innovations brought in by the Children Act 1989 to promote multi-disciplinary work towards protecting, understanding, and helping children and their families. Multi-disciplinary teams, which were once heralded as the way forward, are now restricted to just a few organisations; even most NHS services have shut down their teams for lack of adequate legal aid funding. Professional and expert meetings used to provide opportunities for social workers, Children’s Guardians, lawyers, and clinicians to consider together and plan assessments that led to promoting the welfare of children and their families. Cost-cutting for all professionals has led to these meetings disappearing almost entirely. Instead, we now are asked to undertake assessments of complex family matters with little discussion in advance, late instruction, inadequate documentary evidence, and often restrictions on the number of family members we are allowed to see for our investigations.”

The Commission received many complaints about the level of fees litigants now have to pay in order to access justice, quite apart from the fees levied by HM Courts and Tribunals Service for initiating or continuing with court proceedings. Examples included a fee of £215 for enforcing a court order, a fee of £160 for obtaining a court order evidencing earlier incidents of domestic violence, and a fee ranging between £50 and £175 for evidence from a GP (which may be rejected if it does not follow the LAA’s template for such evidence).

Concern was also expressed about the diminishing number of law centres and solicitors’ firms who hold legal aid contracts for family work, as the following table shows:

Firms with family law legal aid contracts Legal help Civil representation:

Domestic violence

Civil representation:

Financial Provision

2012-13 2,383 1,883 1,961
2016-17 1,399 1,188 790

In a survey conducted by Rights of Women in 2015 71% of respondents said it was difficult, or very difficult, to find a legal aid solicitor in their area, and 53% said that they took no action in relation to their family law problem as a result of not being able to apply for legal aid.

In addition to these problems, Southall Black Sisters wrote of difficulties now confronting black and minority ethnic (BME) women when they seek to access specialist and statutory services.   They said that the “justice gap” was increasingly being filled by discriminatory and unaccountable community-based or religious based forums and ‘tribunals’ which seek to arbitrate using religious laws that have a profoundly negative human rights and equality impact on the most vulnerable in our society, especially BME women.

Resolution summarised the present situation in these terms:

“Many family clients have multiple and not only family law problems. It is extremely challenging to signpost to meet other needs and for family law clients to get advice in related areas of law, including out of scope housing issues and welfare benefits, as it is now almost impossible to get specialist advice on first-tier benefit appeals.

There is an inevitable but unfortunate evidence gap around the volume and experience of those who, for example, may remain in conflicted and damaging relationships, delay resolving matters, or not resolve children and finance matters at all. We are particularly concerned about parents who may decide not to pursue contact issues or are unable to try everything to maintain contact for the child’s benefit.

In terms of the impact on the family court and their client, when they act for a party and one or more of the other parties is a Litigant in Person (LIP), our members consistently report that there is less constructive dialogue between and outside court hearings, and this works against constructive negotiation and settlement before the final hearing. In a Resolution survey, almost 95% of members who responded said that the case takes longer than it could do, almost 70% said that final decisions have to be made by the court without the necessary expert evidence, and 80% that the legal or legal aid costs of the represented party increase.  

This all adds further costs to the family law system, largely due to the extra court time which cases involving a LIP often require. Anecdotally, our members report more children being separately represented in private children cases. This means that, whilst money is being saved at one end (in terms of cuts through LASPO), additional money is being required at the other stages of the process (in order to deal with the consequence of more LIPs)”.

The effect of the LASPO changes on the practice of family law was usefully summarised in the evidence the Commission received from Jenny Beck, who is co-chair of the Legal Aid Practitioners’ Group. When she started practising family law 25 years ago, legal aid funding was available for virtually all family law issues.[25] The changes introduced by LASPO in 2013 fundamentally impacted the provision of family law services, which in turn fundamentally impacted families.

She said that people usually see family lawyers when they are in distress. The absence of any ability to give early advice on the governing principles has meant that a great many people have been unable to look after themselves and their family at all adequately. In the old days, a mother might permit contact if she could obtain a Prohibited Steps Order to prevent the father from keeping the child after the contact was over. Now mothers were deciding not to permit contact at all, because it was altogether too risky given that she could not now obtain legal aid to get the children back if they were not returned to her.

She will receive no “upfront” legal advice about the child’s best interests being paramount, or how the courts view family law cases. As a result, children lose out. They will not receive public funding themselves. As a result, she believes, LASPO has not only eroded access to justice by downgrading the rights of individuals (especially children), but it will also change the fabric of society as a whole as things go on.

Instead of increasing in popularity, as the Government expected, she said that publicly funded family mediation has fallen off a cliff, as the following table shows:

Family Mediations Mediation Assessment Meetings Mediation starts Expenditure on Mediations (£,000s)[26]
2012-13 30,665 13,609 6,268
2016-17 11,927 7,668 2,934

A party is stuck if the other side refuses to mediate, and people are now lacking the initial advice they used to receive from their solicitors about the merits of mediation.

Ms Beck said that there was now evidence of the increased length of time that is taken up by family cases, with an increased tendency of one or both the parties to be unrepresented.[27] The rules of family procedure, she added, are almost impossible for a layperson to follow.

The restoration of legal help in private family law cases

After describing the concessions that had been made in relation to the domestic violence gateway, and the conversations that were continuing up to the announcement of the recent General Election, she said that the cost of restoring upfront legal help in family cases (which she put at £14 million[28]) could be met from the savings in the money the Government had expected to spend on family mediation.   Early advice would not only save money by directing more people into mediation (thereby not clogging up the courts) but it would also make savings in court time.

In this context Colin Stutt, who had immense experience of these matters when he was employed by the Legal Services Commission, told the Commission:

“Family legal aid – a little early help goes a long way.   For me, the most worrying impact of LASPO is not that clients are often left unrepresented in ongoing court proceedings, it is that clients may have access to no advice and assistance early on, and so may even end up pursuing unnecessary proceedings. If, as I fear, it is not going to be economic to reinstate family legal aid in its entirety, I would argue for reintroducing a limited form of fixed fee legal aid which could be used either to help negotiate a settlement, assist in an ongoing mediation or advise and steer a client to help them proceed unrepresented. This involves seeing legal aid as a means for resolving disputes rather than as a process for the funding of representation in court.”

Resolution wrote to similar effect:

Resolution proposes a form of ‘family law credit’—where anyone who meets the criteria for legal aid for family mediation is able to have an initial meeting with or online access to a family lawyer to help them gather evidence they need in order to access legal aid, or to discuss their options.

It may be a combination of services, so that people are able to receive help from a legal professional at the points in the process where they need it most—so even if they end up representing themselves, they have an initial discussion about what they need or want to do. This would help moderate peoples’ understanding of their legal position, avoiding the need for some to enter the court system at all.

Jenny Beck said that although an attempt was being made to compute the knock-on costs of withdrawing early advice, this was very difficult since it involved estimating the greater expenditure that had to be borne by GPs or the mental health services or the police or the prisons and so on if sensible advice was not available early on. It was quite impossible to add this all up in respect of all the people who had lost touch with their families after they had been unable to receive early legal help.

She emphasised the importance of using trained lawyers in family cases. When she is training staff, she sees how trainees often miss out another possible angle to a case because they need more experience to work out how things are likely to pan out.

When asked about fees, she said that the Transforming Legal Aid strategy had imposed a cut of 10% on all fixed fees. The vast majority of care cases cost between £3,000 and £4,000, and are concluded within a 46-week period, with the cost of advocacy (if used) on top.[29] These cases include many child abuse cases.

The Society of Labour Lawyers, for its part, said that family cases are very personal and particularly emotive. They may involve people who are vulnerable, learning disabled people, people for whom English is not their first language, or people with low intelligence or addiction issues.

In some cases legal aid might be available for one area of a case but not for others, which makes it difficult for a litigant to access any effective representation. A recent case had involved an application for an interim care order. It was alleged that the father had strangled the child and committed domestic violence against the mother. Legal aid only covered the application for an interim care order, but not for the application for a non—molestation order which was dealt with at the same hearing. The father brought to court a report by a psychologist which stated that he had a very low IQ. However, he was unable to convey his evidence effectively to the court or indeed to understand what he had to convey.

Problems with cross-examination in family cases

Many respondents drew the attention of the Commission to the harm that is created when an applicant in a domestic violence case is cross-examined by the alleged perpetrator.[30] Public and political disquiet about this practice has now led to the Government deciding to introduce procedures similar to those that are already in use in the criminal courts, although the legislation effecting this change fell at the recent dissolution of Parliament, and will be introduced again in the current session of Parliament.[31]

Suggestions for the reform of LASPO in family cases

In addition to advocating the re-introduction of early legal help in family cases, the Society of Labour Lawyers[32] said that the Government should also reinstate legal aid for representation in particularly sensitive areas of private family law, such as:

  • Cases in which the primary care of a child is in issue and care may be transferred;
  • Cases where there is local authority involvement in private law children proceedings;
  • Cases where representation of both parties is necessary for a just resolution: cases involving particularly vulnerable people, for instance;[33]
  • Cases involving an application to remove a child from the jurisdiction.

They said that legal aid was not needed in contact disputes if the dispute was about the quantum of contact, or whether contact should take place on a Saturday or a Sunday, but it was certainly needed if there was resistance to the idea that there should be any contact at all.

They also recommended a general catch-all test:

Is an allegation so serious that it would be unjust not to provide legal representation to defend it?

Jenny Beck agreed with this approach. She said that a catch-all provision was sensible for cases where it would be inequitable to consider that people had to represent themselves. She also said that the criteria for ECF support in family cases should be relaxed because there were a myriad different smaller issues for which justice demanded representation. She instanced grandparents, who currently do not qualify for legal aid when they apply for a care order to be made in their favour; or a parent when he/she seeks to recover care from a third party (such as a grandparent).

The Law Society also addressed these questions, first in the evidence it submitted to the Commission in January-February 2016, and more recently in its publication Access Denied: LASPO four years on – a Law Society review.[34]

It recommended a streamlining of the domestic violence gateway by suggesting that solicitors and other advisers approved under the legal aid contract should be given delegated powers to confirm that a client is a victim of domestic violence.[35] It was in any event keen that the new government should implement two changes already proposed by its predecessor: that frontline domestic violence support organisations should be able to confirm that an applicant is victim of domestic violence; and the removal of all time limits in relation to the evidence of the last incident of violence sought to be relied upon.

  • The Law Society, too, recommended that funding should be restored for private family law cases related to the removal of children from their parents. It said that this would address the problem of the unnecessary removal of children from family members. It could be achieved in three ways:
  • The reinstatement of funding for private family law applications for extended family members (for example, grandparents) seeking to care for children where their parents are not able to do so;[36]
  • The reinstatement of legal aid in private law applications for special guardianship;
  • The reinstatement of funding for legal advice, assistance and representations for parents who are respondents or prospective respondents to proceedings for special guardianship orders or child arrangements orders which seek to formalise the position of children living with the applicant where a local authority had/has child protection concerns and had considered starting care proceedings but did not do so because the friends and family carer had agreed to apply or consider to apply for the relevant private family law order.[37]

 

 

[1] See the evidence of the Centre for Law and Social Justice in appendix 2 at p. 40.

[2] Rights of Women. (2014) Evidencing domestic violence: a year on. Accessed September 2017. http://rightsofwomen.org.uk/wp-content/uploads/2014/10/Evidencing-DV-a-year-on-2014.pdf

[3] As recommended by the Law Society. (2017) Access Denied? LASPO four years on, recommendation 9. Accessed September 2017:   http://www.edf.org.uk/law-society-review-access-denied-laspo-four-years-on/

[4] See appendix 1, at p. 20.

[5] See the evidence of Jenny Beck in appendix 4 at p. 15.

[6] See the evidence of Colin Stutt in appendix 3 at p. 17.

[7] Law Society. (2017) Access Denied? LASPO four years on. Accessed September 2017: http://www.lawsociety.org.uk/support-services/research-trends/laspo-4-years-on/

[8] Legal Aid Agency. (2017) Statistics January to March 2017, Table 5.2. Accessed September 2017: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/631334/legal-aid-statistics-bulletin-jan-mar-2017.pdf

[9] Ibid.

[10] Legal Aid Agency. (2017) Statistics January to March 2017, Table 8.2. Accessed September 2017: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/631334/legal-aid-statistics-bulletin-jan-mar-2017.pdf

[11] In 2014, for example, the National Audit Office reported that in 80% of family court cases starting in the last quarter of 2013-14 at least one of the parties did not have legal representation. National Audit Office. (2014) Implementing Reforms to Civil Legal Aid, p. 15. Accessed September 2017: https://www.nao.org.uk/wp-content/uploads/2014/11/Implementing-reforms-to-civil-legal-aid1.pdf

[12] See the evidence of the Consortium of Expert Witnesses in Family Courts in appendix 2 at p. 35.

[13] i.e. disputes about the division of financial assets; applications for a lump sum payment or maintenance; transfer of tenancy; and divorce following relationship breakdown.

[14] i.e. disputes about contact and residence of children; injunctions against ex-partners; and Prohibited Steps Orders and divorce following relationship breakdown.

[15] Legal Aid Agency. (2017) Legal Aid Statistics January to March 2017. See fn 2 above. Extracts from Tables 5.2, 5.3, 6.2, 6.3 and 8.2 are reproduced here.

[16] The very small figures for “Combined family proceedings” and “Help with mediation” are omitted from this table. In 2016-17 nobody was assisted under either of these heads.

[17] The Table shows the value of the claims paid during the year: a case may well have started in earlier years.

[18] The very small figures for “Combined family proceedings” and “Help with mediation” are omitted from this table. In 2016-17 there was no expenditure under either of these heads.

[19] In R (Gunanaviciene) v Director of Legal Aid Casework [2014] EWCA Civ 1622. Accessed September 2017: http://www.bailii.org/ew/cases/EWCA/Civ/2014/1622.html

[20] A deep sense of injustice is notably felt by those who face domestic violence and sexual abuse allegations without legal representation when the party making the allegations is in receipt of legal aid.   Sometimes this experience leads to further violence and/or aggression on their part, or they simply walk away from their responsibilities because the proceedings have been so unfair.

[21] Research conducted by Rights of Women in 2015 showed that 37% of women who had experienced or were experiencing domestic violence could not produce any of the forms of evidence that were at that time prescribed. Rights of Women. (2015) Evidencing domestic violence nearly 3 years on. Accessed September 2017: http://rightsofwomen.org.uk/wp-content/uploads/2014/09/Evidencing-domestic-violence-V.pdf

Accessed September 2017. The Welsh branch of Families Need Fathers reported that in a sample survey of 226 male victims that used the same question framework 69.8% of respondents were shown to lack the necessary qualifying evidence.

[22] Amendments to the relevant provisions in the Civil Legal Aid (Procedure) Regulations 2012 were effected by the following statutory instruments: SIs 2014/814; 2015/1416; and 2016/516. All accessed In September 2017: http://www.legislation.gov.uk/uksi/2014/814/part/1/made http://www.legislation.gov.uk/uksi/2015/1416/pdfs/uksi_20151416_en.pdf http://www.legislation.gov.uk/uksi/2016/516/pdfs/uksi_20160516_en.pdf The last of these changes was made shortly after the Court of Appeal had quashed the earlier references to the requirement that evidence in support of an application for civil legal aid services must be no more than 24 months old and also ruled that financial abuse might amount to domestic violence: see R (Rights of Women) v Lord Chancellor [2016] EWCA Civ 91. Accessed September 2017: http://www.bailii.org/ew/cases/EWCA/Civ/2016/91.html .

[23] A very experienced district judge has told me: “Every day in the family court with so many unrepresented litigants is a living nightmare. So very many have mental health problems, drug, language, learning difficulties. I can no longer do justice or protect the vulnerable child or adult – I am in despair.”

[24] In 2014 the National Audit Office reported that in 80% of family court cases starting in the last quarter of 2013-14 at least one of the parties did not have legal representation. National Audit Office. (2014) Implementing Reforms to Civil Legal Aid, HC 784 2014-15, p. 15. Accessed September 2017: https://www.nao.org.uk/wp-content/uploads/2014/11/Implementing-reforms-to-civil-legal-aid1.pdf

[25] Indeed, from the very start family law and personal injury law took up the lion’s share of Government expenditure on civil legal aid, and this state of affairs lasted until the incoming Labour government removed most personal injury claims from scope in the reforms it introduced in the Access to Justice Act 1999.

[26] In its pre-LASPO Impact Assessment the government had allowed additional expenditure of £10 million in anticipation of a greatly increased number of family mediations. It took no, or no sufficient notice of the likelihood that when initial legal help and advice was withdrawn, couples would no longer be advised by their solicitors to submit their differences to mediation.

[27] The Society of Labour Lawyers told the Commission that if litigants in person are involved, there is less likelihood that they will narrow the issues, and their submissions are less likely to be succinct. There is therefore an increase in lengthy contested cases at a time when cuts in court resources are already taking place.

[28] Legal Help for an initial consultation with a lawyer is currently available at a fixed fee of £86. For Level 2 (Family Help (Lower) – Finance), which covers advice and assistance (including negotiation with the other party) but falls short of representation, a fixed fee of £208 is payable (£241 in London), and a settlement fee of £125 (£145 in London). Slightly lower fees are payable in children cases.

[29] There are a tiny number of family cases that are more expensive. In child murder cases or other cases of the utmost seriousness authority may be granted by the LAA for a QC and a high-cost care plan, and it is these cases that account for a much higher overall spend on legal representation. Jenny Beck herself has not seen one of these cases in the last two years.

[30] Jenny Beck said that she had had a very recent case in which her client simply refused to give evidence because she was so alarmed at the prospect of being exposed to such cross-examination.

[31] This legislation (Clause 47 of the Prisons and Courts Bill 2017) was introduced in the light of the observations of Lord Dyson MR in Re K & H (Children) [2015] EWCA Civ 543. Accessed September 2017: http://www.bailii.org/ew/cases/EWCA/Civ/2015/543.html, in which the Court of Appeal overruled a judgment by the President of the Family Division to the effect that the court itself had the power to direct HM Courts & Tribunals Service to fund the necessary representation. The new government has said that it will include the provision again in the Courts Bill it will present in the current session of Parliament.

[32] The Society’s evidence in family law cases was presented by Naomi Angell, a former chair of The Law Society’s Family Committee, now a consultant at Osbornes LLP, who through a long professional career combined her casework as a family law solicitor with national family policy work.

[33] At present vulnerable people receive legal aid on an application for interim care, but not on a later application for the revocation of a care order.

[34] The Law Society. (2017). Access Denied? LASPO four years on – a Law Society review. Accessed September 2017: https://www.lawsociety.org.uk/support-services/research-trends/laspo-4-years-on/

[35] The logic is that such solicitors can in any event be subjected to disciplinary sanctions and the loss of their legal aid contract if it is shown that they have abused this power.

[36] It suggested that a letter of recommendation from children’s services should satisfy the LAA that legal aid should be granted for this type of application. At least one local authority is currently paying for grandparents and family members to make private law applications in order to protect children. This is said to be far less expensive than to incur the cost of initiating public law care proceedings itself.

[37] The Commission was told by one experienced family law firm that in their experience due to budgetary consideration many Local Authorities were not issuing Care Proceedings in circumstances they previously would have in the past where children have been placed with the wider family. “Instead they are telling the wider family – who are often grandparents – to make an application to the Court for a Special Guardianship Order or a Child Arrangements Order. These are Private Family Law applications and so no longer in scope for legal aid. In these ‘edge of care cases’ the grandparents will often be of limited financial means and would have previously been eligible for legal aid pre-LASPO but find that is no longer available to them. In many instances the Local Authority is then refusing to meet their legal fees – even at legal aid rates – to enable them to obtain legal advice and representation to obtain the necessary Orders.”

 

 

 

 

 

 

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