Achieving Justice in Private Family Law Disputes: Ramifications of LASPO

The last decade has seen a significant rise in litigants choosing to represent themselves in civil courts. This comes principally in response to Government cuts to legal aid in 2012, which have caused particular upset in the private family law sphere due to the sheer number of people affected. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) restricted legal aid in most private family law disputes, with some exceptions including, for example, cases of forced marriage, child abduction and domestic violence.

Even so, victims of domestic violence are only entitled to legal aid if they can provide the court with “trigger evidence” that they, or their children, have been subjected to domestic abuse or financial control.[1] This can be a particularly high threshold to meet, evidenced by the fact that a survey conducted by Rights of Women found that only ‘37% of women…who had experienced or were experiencing domestic violence did not have the prescribed forms of evidence to access family legal aid’.[2] Rights of Women maintain concerns that LASPO acts as a barrier for victims of domestic abuse as too many women who are ‘at risk of violence are still unable to access legal advice and representation on family law remedies that could afford them safety and justice. [3]

The aim of LASPO was to cut ‘£220m from the legal aid budget per year by 2018-19’[4] This was justified by the execution of the Ministry’s four objectives, ‘to:

  • discourage unnecessary and adversarial litigation at public expense;
  • target legal aid to those who need it most;
  • make significant savings in the cost of the scheme; and
  • deliver better overall value for money for the taxpayer.’[5]

The United Nations encourage states to provide free legal aid for those who do not have sufficient means to pay for it in the interest of upholding access to justice.[6] Whilst a minority may actively choose to represent themselves in court, the overarching consensus is that those who simply cannot afford professional advice and advocacy are denied access to a fair and informed hearing. It can be asserted that denying access to legal services is ‘a form of the denial of access to the legal system’[7] as denying legal representation is a threat to the protection and enforcement of legal rights, fair trial and equality of arms between parties.[8]

Since the 2012 Coalition Government reforms on legal aid, the extent to which a litigant’s decision to represent themselves is genuinely made on account of their own free will is highly contested in private family proceedings. The decision to self-represent is commonly arrived at as a last resort – viewed as an impractical, high-risk and time-consuming resolution. A survey conducted by the International Bar Association found that ‘respondents often pointed to the complexity of the legal language and process as obstacles on this path.’[9] Sarah Langford highlighted Ministry of Justice figures for 2017: ‘18% of all family cases had legal representation for both parties; 36% had no lawyers involved at all.’[10] This gives rise to major injustices because litigants are not trained to navigate a tangled labyrinth of abstract legal principles. Despite this, the number of private family law cases started per year has begun to stabilise at around 50,000.[11]

The Law Society identified a fatal error with LASPO in that the assumption that alternatives to legal aid would emerge have not materialised.[12] Legal aid remains a decisive factor in awarding access to advice to society’s most vulnerable at a time of great need. It plays a vital role in overcoming the barriers people face in obtaining justice, providing the client with ‘equal knowledge of the law, their rights, and the procedures they need to go through.’[13] Making legal advice more accessible would alleviate the difficulties facing litigants in person and mitigate public distrust in the mechanisms of justice.

If you seek legal aid for a family matter, but are unsure as to whether you qualify, then get in touch to book a free 20 minute consultation. We have a family law legal aid contract to help our clients navigate the complications of family law proceedings. In the event that your case does not qualify for legal aid, we may also be able to assist you privately.

Lucas Franca-Landure

Student Intern

 

[1] The strict evidential requirement requiring domestic violence to have been verified within a 24-month period before any application for legal aid were deemed unlawful in R (Rights of Women) v Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 91 because this frustrated the purpose of LASPO. Despite this, it remains difficult for victims of domestic violence to satisfy the threshold required of them to prove to the courts that violence or abuse had taken place. <http://www.bailii.org/ew/cases/EWCA/Civ/2016/91.html>.

[2] ‘Evidencing Domestic Violence: Nearly Three Years On’ (Welsh Women’s Aid, Rights of Women and Women’s Aid, 2015) <https://rightsofwomen.org.uk/wp-content/uploads/2014/09/Evidencing-domestic-violence-V.pdf>.

[3] ibid.

[4] Speak Up for Justice, ‘Justice Denied – Impacts of the Government’s Reforms to Legal Aid and Court Services on Access to Justice’ (Trades Union Congress, 2016) 4 <https://www.tuc.org.uk/sites/default/files/Justice_Denied_Report.pdf>.

[5] Justice Committee ‘Impact of Changes to Civil Legal Aid Under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012’ (HC 2015, 311) 3 <https://publications.parliament.uk/pa/cm201415/cmselect/cmjust/311/311.pdf>.

[6] Human Rights Committee, ‘General Comment No 32, Article 14, Right to Equality Before Courts and Tribunals and to Fair Trial’ (United Nations, 2007) para 10 <https://www.refworld.org/docid/478b2b2f2.html>.

[7] D Luban, Lawyers and Justice: An Ethical Study (1988) 244.

[8] J Beqiraj and L McNamara, ‘International Access to Justice: Barriers and Solutions’ (Bingham Centre for the Rule of Law Report, 2014) 25 <https://www.biicl.org/documents/485_iba_report_060215.pdf>.

[9] ibid 26.

[10] S Langford, In Your Defence (Transworld 2019).

[11] Lord Burnett, ‘The Lord Chief Justice’s Report 2018’ (Judiciary of England and Wales, 2018) 19 <https://www.judiciary.uk/wp-content/uploads/2018/11/lcj-report-2018.pdf>.

[12] ‘Submission of the Law Society of England and Wales to the Labour Party Review of Legal Aid’ (The Law Society, 2016) 8 <https://www.lawsociety.org.uk/policy-campaigns/consultation-responses/documents/law-society-submisison-bach-review-march-2016/>.

[13] idem 5.

Leave a Reply

Your email address will not be published.