Decades And Delays: A Timely Legal Aid Review? 

Published on 17 April, 2023 | Katie Welton-Dillon

Family law is one of the most discretionary of all legal disciplines.

Even the most experienced practitioners know that the outcome of a case which goes to court can depend on how the judge hearing it interprets the evidence which is given.

For people without legal training who choose to represent themselves, the situation can be even more daunting.

Yet over the last decade, many more men and women have had to do just that.

The passing of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 saw the withdrawal of public funding for many different types of family law matters (https://www.legislation.gov.uk/ukpga/2012/10/contents/enacted).

As a result, since the provisions of the Act took effect in April 2013, there has been a considerable change in how cases are conducted.

Figures published by the Ministry of Justice at the end of March, for instance, showed that 39 per cent of private law cases last year about childcare arrangements involved both applicants and respondents who did not have legal representation (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2022/family-court-statistics-quarterly-october-to-december-2022#divorce).

The proportion of unrepresented individuals – or Litigants in Person, as they are referred to – has gone up by 27 per cent in the decade since Legal Aid was removed.

That has a very real impact on their own cases and the wider operation of family courts across the country.

Litigants in Person are generally not in receipt of any legal advice.

Many do not know their full legal position or the formal procedures to which they must abide, regardless of whether they are engaged in discussions about dividing marital assets on divorce or deliberations about their children’s upbringing.

It is not just the way that cases are argued in court but how they are prepared.

To give you just one example, some people believe that they can best support a case about childcare by making recordings of the children concerned, whereas in practice that can undermine an argument which is otherwise reasonably sound.

Unsurprisingly, all that can lead to delay.

Further Ministry of Justice data, in fact, shows that both divorce and private law children’s cases were taking much longer to resolve last year than they had in 2021 – up 14 weeks and five weeks respectively.

It is more than merely an abstract set of statistics. The lack of legal representation means that opportunities to resolve matters sooner are not grasped and more cases end up going to final hearings to be determined by a judge.

Against that backdrop, therefore, it comes as welcome news to learn that the Ministry of Justice is undertaking a review of civil legal aid (https://www.gov.uk/guidance/civil-legal-aid-review).

Even though the process actually began at the end of January, most people only realised that it was underway when Justice Minister Lord Bellamy made mention of it in the House of Lords a month ago (https://publications.parliament.uk/pa/ld199900/ldjudgmt/jd001026/white-1.htm).

I should point out that Legal Aid is available for some family law matters, including things such as cases in which domestic abuse is a feature.

However, many incidents of domestic abuse are not reported to police, meaning that some victims are not able to draw on publicly-funded legal advice in relation to their family difficulties.

According to the terms of reference which have been published, the review will consider civil Legal Aid “in its entirety” – not only how well those dependent on it are served but its impact on the “wider justice system”.

It would be unwise to second guess what the outcomes of the review will be and how they might be adopted by Government, especially at a time of significant economic pressures and with a possible General Election not too far away.

Nevertheless, any increase in Legal Aid would be helpful in addressing the individual circumstances of those who might avoid the prospect of needing to represent themselves as well as the knock-on effect across the rest of the workload handled by family courts in England and Wales.