The Impact of Legal Aid Cuts in Family law: 18 months on

Significant changes to civil legal aid in England and Wales came into effect on 1 April 2013, as part of legislation introduced to save £350m a year. The changes mean that funding has been withdrawn for almost all family law cases.  18 months on, this article looks at the impact of the cuts.

Now that the majority of separating couples do not qualify for legal aid (even those on benefits or very low income), many have no option but to represent themselves. These litigants in person are left to navigate their own way through the court system as they attempt to reach settlements in relation to their finances and children.  According to statistics released recently, as many as two thirds of cases now involve at least one litigant in person.

Almost invariably, cases where one or both parties are not represented progress more slowly than cases where both parties are receiving advice from a solicitor. On a practical level, hearings involving a litigant in person often take longer than hearings where both parties have lawyers, because judges have to spend considerable time explaining points to the unrepresented party.  In a written submission to MPs earlier this year which criticised the impact of the cuts, the Judicial Executive Board stated: “The judiciary’s perception is that cases which may never have been brought or been compromised at an early stage are now often fully contested, requiring significantly more judicial involvement and causing consequential delays across the civil, family and tribunals justice systems.”

The result, according to Jo Edwards, a solicitor at Pennington’s Manches and the chair of Resolution, is a court system which is “at breaking point”. Many practitioners are experiencing significant delays in getting hearings listed – the author of this article recently had a hearing listed 7 months in advance.

On the ground, the delay means that many families face longer periods of uncertainty, as their financial and children disputes are taking far longer to resolve. The impact of the delay on the children of these families cannot be underestimated.

An alternative to going to court to resolve family disputes is arbitration. Arbitration provides parties with the ability to determine their own timetable and to appoint their own arbitrator.  Family arbitration is a relatively new service which only became available in 2012.  For many divorcing couples, it is an attractive option compared to the overstretched court service.  However, it is only available to those who can afford it: whereas the state pays the salaries of judges, the parties have to pay for an arbitrator to determine their case.  Most arbitrators are very senior lawyers (many are QCs) therefore they are expensive.  There is a concern that as arbitration becomes more popular, a two tier system may emerge whereby those who can afford it will “opt out” of the overcrowded court system in favour of arbitration.

So what is the answer? Resolution believes that providing legal aid for a single, initial meeting with a lawyer would provide separating couples with clear “signposts” about their legal options and encourage more people to use mediation as an alternative to courtroom confrontations.  Even following the cuts, legal aid is still available for those of limited means if they go to mediation to resolve their disputes.  Many litigants do not know this – the result is that the number of couples attending mediation has plummeted following the removal of legal aid, because divorcing couples have stopped going to solicitors who would previously have directed them on to trained mediators.  Resolution believes that if funding was provided for an initial meeting with a solicitor, litigants in person might be more likely to at least try to resolve disputes in mediation before resorting to making a court application.  Resolution is already running pilot projects in Crewe, Oxford and Newcastle, offering an initial meeting with a solicitor for those who would have qualified for legal aid under the old system.

The fact remains, however, that many cases are not suitable for mediation. Even if more people take up the funding that still exists for mediation, the court service is still likely to be overstretched.  In the face of criticism from family lawyers and senior members of the judiciary, what is the government’s response?  Following the publication of the report of the Judicial Executive Board referred to above, a Ministry of Justice spokesperson said: “We have one of the most expensive legal aid systems in the world at around £2bn every year. We have therefore had to face up to tough choices in reforming legal aid. We are closely monitoring the impact of these changes.  We have listened closely to any concerns raised and we are committed to reviewing certain aspects of the scheme.”

This response has left many family lawyers, judges and parties wringing their hands in despair: how bad do things have to get before the government listens?

If you have any queries about this article please contact jonesnickolds on 0203 405 2300 or contact@jonesnickolds.co.uk