The ‘Dispossessed’: Family Law And Legal Aid Cuts 

Published on 07 November, 2022 | Katie Welton-Dillon

In the world of elite sport, coaches, athletes and commentators talk about the ability of what are described as ‘marginal gains’ to transform results.

The basic idea is that small yet significant improvements can make a considerable difference.

It is a concept which is recognised outside of the sporting arena, of course.

In fact and only in the last couple of weeks, a judge has identified how one element – legal representation – can be critical to cases coming before the courts.

Mr Justice Todd’s remarks came as he adjudicated a dispute between a couple and Greenwich Borough Council, in London (https://www.mylondon.news/news/south-london-news/couple-forced-represent-themselves-against-25326429).

The couple were seeking to have their teenage son with “complex” needs returned home, two years after he entered council care following the decision by another judge that he was beyond his parents’ control.

As Mr Justice Todd noted, the parents involved had to represent themselves against the “very senior counsel” retained by the local authority because they were £36 over the threshold which would have entitled them to Legal Aid.

The couple were, he said, “conscientious, hard-working and in employment” but had become “the dispossessed” by “virtue of being neither poor” enough to qualify for Legal Aid “nor rich enough” to afford to pay for lawyers of their own.

“In a complex case such as this”, the judge continued, legal representation might mean “the difference between a fair hearing and an unfair one”.

His comments have once more illustrated the pressures on families and the legal system since reforms of the Legal Aid system a decade ago.

In May 2012, the then Justice Secretary, Kenneth Clarke, successfully navigated a piece of legislation called the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) through parliament and onto the Statute Book.

As the name suggests, it comprised a wide range of powers. One critical consequence of its passage through parliament was a reduction in the amounts spent on Legal Aid.

The human rights organisation Liberty complained that it would leave “only criminal defendants and professional footballers” able to afford legal advice (https://www.theguardian.com/law/2011/jun/21/kenneth-clarke-legal-aid-cuts).

The Government maintained, however, that the changes would keep Legal Aid where it was most needed.

Legal Aid is still available in family law cases for those are at risk of abuse or harm. However, those who may be entitled need to meet specific criteria (https://www.gov.uk/legal-aid).

The effects of LASPO have been considerable and have manifested themselves in a number of ways.

Legal Aid expenditure has certainly been reduced. In the three years after the reforms came into force, the sums spent annually on Legal Aid in family cases fell by nearly one-third (31 per cent or £300 million).

I should point out that there has been a subsequent increase. The figure for the last full financial year stood at £812 million but that is still 17 per cent less than in 2012-’13 (https://www.gov.uk/government/statistics/legal-aid-statistics-quarterly-april-to-june-2022/legal-aid-statistics-england-and-wales-bulletin-apr-to-jun-2022).

It is not likely that things will change in the near future, at least. The Ministry of Justice revealed that individuals who call the Civil Legal Advice (CLA) helpline with family issues “are no longer referred to specialist telephone advice”.

Partially as a result of that, the number of family law cases which began between August and June this year in which Legal Aid was granted were down 22 per cent on the same period in the previous year.

More than the financial perspective is the impact on cases dealt with by Family Court.

Data released by the MoJ at the end of June showed that matters in which one or both parties did not have legal representation took longer to resolve (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-january-to-march-2022/family-court-statistics-quarterly-january-to-march-2022#legal-representation).

Forty-one per cent of private family law cases before the courts between January and March this year featured both applicants and respondents without legal representation – up 27 percentage points on the period immediately before the Legal Aid changes and four per cent higher than the same quarter in 2021.

Family Court judges must act in the best interests of any children who are party to the cases which come before them.

They must, though, remain totally impartial and cannot give advice to parents who are representing themselves.

It is hardly surprising that the observations of Mr Justice Todd and others have reignited the debate about whether further positive changes to Legal Aid provision – such as a raising of the qualifying threshold for support – are needed.

In the meantime, those anxious to ensure fairness have to be creative in how they offer support.

Hall Brown, for example, is part of the University of Manchester’s Legal Advice Centre, supervising on a pro bono basis students offering help to individuals who can’t afford to pay legal representation of their own.

It remains to be seen whether the pattern of decline in Legal Aid spending will be reversed by ministers.

The current straitened economic climate – in which the rising cost of living leaves many families cutting back on all but essential items – makes it even more likely that parents will be forced to take legal disputes into their own hands.