The House of Commons Justice Committee has published published its latest report on the Future of Legal Aid
In its latest report, the Justice Committee discusses the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) removal of private family law from the scope of legal aid and highlights the importance of early legal advice in family issues.
The report draws on research and commentary from several experts including Dr Mavis Maclean, senior research fellow at the University of Oxford, who commented that even though the LASPO exceptions were designed to protect children, in practice, many private family law cases, which are out of scope as they don’t fall within one of the exceptions, affect children.
The introduction of LASPO removed private family law from the scope of legal aid with the following five main exceptions:
- Proceedings in the domestic violence category (e.g. non-molestation and occupation orders);
- Proceedings involving children, financial provision and other family proceedings where domestic violence and/or child abuse could be evidenced against a set of evidence requirements set out in regulations (the “domestic violence evidence gateway”);
- Proceedings in which a judge makes a child party to proceedings;
- Proceedings in connection with orders to prevent international child abduction; and
- Proceedings to secure the return of an abducted child, or proceedings involving various cross-border issues under EU and international law.
Maclean argues that a considerable number of highly conflicted private law disputes, may put children at risk, and in such “cross over” cases “it is hard to see the justification for any distinction in legal aid eligibility”. The changes to scope had a significant impact on the number of legal aided family cases, she argues.
In relation to the timing of legal advice, Dr Maclean’s evidence points out that early legal advice from legal practitioners helps to resolve family issues more quickly.
Resolution, agrees stating that its members “wish to see more people early on and divert them from court if at all possible”.
Elspeth Thomson, from Resolution, also explained in the report that early advice enables lawyers to explain the process and to provide a “reality check” on what might be achieved by going to court, and also argued that current framework does not enable a focus on the most-deserving cases.
The report also found that in limiting the availability of legal aid for private family law, the Government had hoped that separating couples would use mediation instead of the courts. But conversely, as Professor Anne Barlow and Dr Jan Ewing, both from the University of Exeter, found, LASPO had “the unintended consequence of significantly reducing family mediation starts and increasing the number of cases issued in court”.
Legal aid statistics show that in 2011–12 there were 15,357 mediation starts, and in 2019–20 there were just 7,562. Professor Barlow and Dr Ewing argue that receiving legal advice before and alongside mediation would increase the numbers using mediation and the numbers that would settle in mediation.
Finally the Committee report welcomes theintroduction of the Family Mediation Voucher Scheme launched by the Government on 26 March 2021, which provides a contribution of up to £500 towards the mediation costs for eligible cases. The Committee states that “it is a positive step and recognises that more needs to be done to help separating parents”.
“We believe that if early legal advice was available alongside mediation, this would result in an increase in the numbers using mediation successfully”
said the report.
The full report can be viewed here.