Family Courts and Legal Aid

Recently, a Council of Europe study revealed that the UK is Europe’s legal aid capital and the third highest out of nearly 50 countries analysed. The comparison between other countries is questionable, as Amanda Pinto QC, Chair of the Bar Council in a press release stated in response:

‘“Comparing England and Wales’ spending on legal aid with that of other countries is like comparing apples with oranges. It takes no account of the fact that there are huge differences in the way countries’ justice systems are organised and funded – in particular, what legal aid is used for. It ignores differences in population sizes, economic situations and how citizens can be supported in exercising their legal rights.”

I would encourage all to read Amanda Pinto QC’s response in full which is available here.

In the family law context, the availability of legal aid diminished considerably when the government introduced Legal Aid Sentencing and Punishment of Offenders Act 2012 [LASPO] which came into force with the aim to save £350 million pound a year to slash the national deficit. Since then, legal aid has been administered by the Legal Aid Agency and the impact of LASPO had a big impact on the availability of legal aid, particularly in cases involving private law disputes relating to children.

Shortly after the introduction of LASPO, in April 2014 NAPO published a report from the Family Court Unions Parliamentary Group assessing the impact of legal aid cuts on family justice and the Rt Hon Elfyn Llwyd Mp reported that the cuts have ‘resulted in entrenched and drawn-out court cases, as people are left with no alternative but to represent themselves as litigants in person’ and that  ‘devastatingly, 68,000 children a year will be affected’. Since then, year-on-year senior judges and other figures involved in the administration of family law and justice have continuously raised the consequences of the lack of legal aid in family law proceedings from the perspectives of litigants in person, the court and lawyers.

Understandably, further concerns have been raised since the covid-19 pandemic struck when more hearings are being undertaken virtually by video and telephone. For example, the Nuffield Family Justice Observatory in its report ‘Remote hearings in the family justice system: a rapid consultation’, which ran for a two-week period from 14 to 28 April 2020 and had over 1,000 people responding to the consultation, commented: ‘there were particular concerns raised with regard to litigants in person, with some respondents recommending that legal aid should be granted to litigants in person, allowing them to secure representation, and relieving pressure on the court by enabling a more focused hearing’ and ‘there was particular concern for litigants in person as they have no one to provide any prior post-hearing explanations or support, and are having to negotiate the system and all the recent changes with little or no guidance or advice’. Further, the following was reported:

‘Telephone hearings work less well with LiPs [litigants in person] in private law cases where there is a great deal of acrimony between the parents…In one case I could not restore order and had to cut them off (Judge)’

‘For cases involving litigants in person, I think the cost may be too high as there is a danger that they will be lost in the system and that their voice will not be sufficiently heard (Barrister)”

Family law involves individuals from all walks of life, some who are classified as vulnerable and need support and the impact of not securing legal aid and obtaining legal representation can make the remote working more difficult for them to navigate.

There are a few hurdles to overcome in terms of securing legal aid in the first place for private law proceedings. In general terms, legal aid is only available if an individual passes the ‘means and merits’ test and has sufficient evidence relating to domestic abuse.  In regard to ‘means’, the legal aid agency will assess whether someone is financially eligible for legal aid once the evidence of all income (such as wages) and capital (savings and assets for example) are disclosed and considered by the legal aid agency. Further, they will also take into account for the purposes of the ‘means’ assessment the finances of the individual’s partner that they live with (unless of course the case is against them).  If your income and capital is higher than that the threshold set by the legal aid agency then legal aid is not available. If your income/capital is below the threshold there is still the potential that an individual will have to pay a financial contrition towards the legal aid.

In terms of merits, the legal aid agency have to be persuaded as to the chances of succeeding and the strengths and weaknesses of the case as well as other factors such as the reasonableness of the costs. An issue with the ‘merits’ test is that even if legal aid is granted at the outset of the proceedings, uncertainty still exists because throughout the case the merits of an individual may reduce (for example if there is a negative assessment or report within the proceedings) and if so there is a chance legal aid will not be continued. Another hurdle is that for proceedings such as those dealing with divorce and private children for example, evidence in the form the legal aid agency sets relating to being a victim of domestic abuse is also necessary.

The legal aid criteria can at times be complex and it is advisable to approach a solicitors firm who undertake legal aid work who can advise on the likelihood of securing legal aid as well as undertaking a legal aid calculation to assess if your means fall below the required threshold.

The impact of legal aid cuts by the mainstream media generally has not received as much attention as it rightly deserves although a quick google search will reveal ample articles about the difficulties that lawyers, judges, court staff and more importantly, litigants in persons have experienced.  Family law is a complex, wide-ranging area of the law and can be a minefield for litigants in persons to navigate around. Litigants in person do not only have the complexity to deal with, but it must also be acknowledged that the complex procedures / law are heightened further by the emotive nature of family law disputes.

Family law is not alone in its struggles arising out of a lack of legal aid, criminal law and other areas of civil law have also had a really tough time over the years. Unfortunately, with the Covid-19 crisis and other political issues on the horizon it is questionable whether the impact of the legal aid cuts will be at the forefront of the political minds.

Mani Singh Basi is a Barrister at 4 Paper Buildings, London