For many years ‘Legal Aid’ sounded like manna from heaven for those finding themselves embroiled in a family dispute, often providing the only realistic possibility of pursuing litigation. However, after the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, reality is very different. LASPO inverted the availability of Legal Aid from a right with exceptions for those wealthy enough to afford private advice to a blanket prohibition barring specific, limited exceptions.
In the family setting these exceptions are arguably at their narrowest and most unjust with legal aid remaining available only for mediation and cases with an element of domestic violence. The government enacted these changes to reduce public spending on “unnecessary and adversarial litigation” but in fact overall it has fallen only 3% since 2012. To compound matters further the contracts under which firms can undertake Legal Aid work have changed and their numbers fallen by 20% leaving large areas of the UK “legal advice deserts”.
This has led many to attempt self-representation leading to an enormous rise in the number of litigants in person (LiP’s), with over 60% of family cases involving LiP’s on both sides. This creates two problems: firstly, how is a litigant facing the prospect of a legal battle to find out what self-representation really entails and, secondly, does the “new normal” in the Family Division undermine the fair trial by an independent adjudicator that the rule of law and, importantly, Article 6 of the European Convention on Human Rights promises?
The first problem arises largely from the removal of all legal aid for early advice. Pre-2012 a solicitor could apply for funding to advise clients on navigating the legal system and how best to proceed to reach the most beneficial outcome. Today this void has largely been filled by charities such as Citizen’s Advice and Resolution, but they simply don’t have the capacity to provide personalised advice and often little information about court processes themselves.
But LexSnap can help. Using AI we provide personalised advice to help navigate any family law dispute, from mediation to commencing court proceedings. We can also help with signposting to other organisations that can support with completing applications and the practicalities of appearing in court.
The impact of LASPO on the prospect of a fair trial is far more complex. Only this year the judiciary received new Guidance on appropriate treatment of LiP’s in the ‘Equal Treatment Benchbook’. Judges are reminded that litigants in person shouldn't be seen as an “unwelcome problem” and they should avoid giving the impression of prejudice against them. The need for such a warning should give any potential LiP reason for caution. Perhaps this concern is derived in part from the increasingly strict approach taken by courts to LiP’s making procedural errors. Recently in Barton v Wright Hassell the Supreme Court made clear there would be no “greater indulgence” for LiP’s who file applications or evidence incorrectly or tardily. There is sadly no sympathy for litigants struggling to comprehend and adhere to the complex and lengthy Family Procedure Rules and Directions. Further the potential for an alleged victim of harassment or domestic violence to have their testimony cross-examined by an unrepresented and ineligible Legal Aid abuser is one which would undermine any possibility of a fair hearing for either party. Despite attempts by judiciary to act otherwise the court has no discretion to alter financial provision even in these circumstances.
There is a final remaining source of hope for litigants seeking funding by way of ‘Exceptional Case Funding’. ECF is designed to fund cases ordinarily out of scope where Convention rights would be or are at risk of being breached without Legal Aid provision. This might encompass, for example, applications for asylum or particularly complex family cases. While this might appear to be the salvation of our current system, such hope is unfounded. The application process is long and complicated, solicitors are unable to claim funding for their completion unless successful and even professionals report each application taking 8-10 hours. Secondly, the bar has been set extremely high for applications based on potential Article 6 breaches and despite ‘complexity of substantive and procedural issues’ being central, the case law suggests the emotional complexity of family law cases fall far short. This is reflected in the fact that only 26% of Family ECF applications succeed.
The Legal Aid landscape therefore looks unapologetically bleak. There is little funding, what is available is difficult to apply for, let alone secure, and there is no provision for advice for those setting out the journey which might improve their prospects. For any individual starting to consider legal proceedings to resolve a family issue, securing reliable legal advice at the earliest opportunity will make the next steps seem far more manageable. If you are feeling unsure, LexSnap can be a great place to ask the first question.