Legal aid: radical ideas – #3: Reform family law structures or reinstate legal aid
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Marc Bloomfield
This is the third in a series of four articles, all of which present radical ideas for potential changes to legal aid in England and Wales, rooted in current practice in Nordic jurisdictions. The proposals are controversial and may not be suitable for wholesale adoption but aim to shake up thinking about legal aid and stimulate further debate. Here, Anna Barlow argues that the family law system in England and Wales requires urgent attention and extensive change.
My first two articles in this series proposed specific changes to legal aid in England and Wales; this month I present a choice. I have previously argued for scope restrictions to be reimagined, so that the focus is on a particular litigant’s need for help, irrespective of the subject matter of the case. As things stand, though, most private family law cases are not eligible for legal aid and this month’s proposal addresses these cases in particular. The scope changes in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) were effective in reducing legal aid spend on private family law, but left a vacuum when the hope that mediation would expand sufficiently to provide access to justice in these cases proved ill-founded. A consideration of other countries suggests a way to avoid legal aid expenditure on private family law cases while maintaining access to justice - by establishing non-court routes for family justice.
An effective money-saving measure, but at a cost
LASPO ended legal aid for private family law cases unless there was evidence of domestic abuse or child abuse. As family law was, and remains, the largest category of civil legal aid, the potential for cutting costs was considerable. In the year to September 2019, only £89m was spent on legal aid in private family law cases1Calculated from data published by the Ministry of Justice (MoJ) in Legal aid statistics quarterly bulletins of October–December 2018 (28 March 2019), January–March 2019 (27 June 2019), April–June 2019 (26 September 2019) and July–September 2019 (19 December 2019). compared with a figure of nearly £257m in 2012/13.2Legal aid statistics: main tables 2013 to 2014, table 6.4. This is a drop from 33 per cent of the non-criminal legal aid spend, to just 12 per cent. Clearly, as a money-saving device, the change has been successful.
However, the resulting lack of assistance for litigants in most family matters has serious implications for access to justice. It has long been established that family law cases, by their very nature, are likely to generate a need for legal support. Indeed, it was a private family law case, Airey v Ireland App No 6289/73, 9 October 1979, that first established the right to legal aid in civil cases under article 6 of the European Convention on Human Rights (ECHR). The European Court of Human Rights held that, as ‘marital disputes often entail an emotional involvement that is scarcely compatible with the degree of objectivity required by advocacy in court’ (para 24), Mrs Airey would be unable to effectively present her case without assistance, and that legal aid was required.3While there was domestic violence present in the marriage, the judgment does not dwell on that aspect, nor does it suggest that the dicta would not apply to a case where no such violence was alleged. The court highlighted the incompatibility between the demands of self-representation in the court environment and the nature of family cases, with the solution in Airey being the introduction of civil legal aid in Ireland.
In England and Wales, legal aid has now been withdrawn from most private family cases and the exceptional case funding scheme is not fulfilling its aim of preventing breaches of the ECHR.4Access denied? LASPO four years on: a Law Society review, The Law Society, June 2017, page 21. The logic in Airey suggests another option for maintaining access to justice – avoid court proceedings.
This was, of course, the government’s explicit intention; legal aid changes were to be used as a tool to encourage people to ‘take a more direct role in [the resolution of family cases], using mediation and keeping court proceedings to the minimum necessary’.5Proposals for the reform of legal aid in England and Wales, CP12/10, Cm 7967, MoJ, November 2010, para 4.69, page 43. Unfortunately, this tactic failed; the use of mediation actually fell in the year after the reforms,6Access denied?, page 19. and has remained low. In the quarter to September 2019, mediation information and assessment meetings (MIAMs) stood at just over a third of pre-LASPO levels.7Legal aid statistics quarterly, England and Wales July to September 2019, MoJ, 19 December 2019, page 9.
The Equality and Human Rights Commission fears that many people have decided not to take legal action as a result of the lack of legal aid, or have been forced to represent themselves, which ‘is likely in some cases to have resulted in outcomes that are inappropriate or unjust, including where children are involved’.8Dr James Organ and Dr Jennifer Sigafoos, The impact of LASPO on routes to justice, Research Report 118, September 2018, para 4.8, page 27. For the government, the result has been an increased number of litigants in person, causing additional pressure on the courts9The impact of LASPO on routes to justice, page 50. – the reverse of the intended outcome.
Structural solutions
It appears that to divert private family law cases away from court to more appropriate dispute resolution mechanisms, some effort will be involved beyond simply applying disincentives to the judicial route.
The failure of the policy may be structural; The Law Society has argued that ‘without early advice from a solicitor, many people do not know that the option of mediation exists, or how to access it’.10Access denied?, page 20. It appears that to divert private family law cases away from court to more appropriate dispute resolution mechanisms, some effort will be involved beyond simply applying disincentives to the judicial route.
A wish to keep family cases out of the court is common to many jurisdictions, both within the UK and further afield. In 2017, the Review of Civil and Family Justice in Northern Ireland recommended that there should be a ‘fresh emphasis on solutions outside the court system, with more accessible mediation and educative parenting programmes’.11Review group’s report on family justice, September 2017, page ix. However, it was felt that ‘the courts must be ready to be engaged and take an active role, otherwise there may be a lack of willingness by the parties to agree or mediate a sensible agreement’.12Review group’s report on family justice, para 7.45, page 56.
The Scottish government’s Family justice modernisation strategy (September 2019) expressed misgivings about the value of non-court dispute resolution in the high proportion of family cases in which domestic abuse is a factor, and proposed only to produce and distribute guidance for individuals on alternatives to court (see para 7.19, page 38). Mediation is the main alternative considered in the UK jurisdictions, although signs can be seen of a growing interest in other options, such as the Scottish Parenting Plan (a voluntary agreement between parents) and, in England and Wales, the Cafcass Separated Parents Information Programme.
The Nordic countries also aim to keep family law cases out of the courts as much as possible, but their approach has been to provide alternative institutions that supplement and, in some cases, replace courts in the initial stages of family cases. One example is in Sweden, where financial issues arising on relationship breakdown are in the first instance dealt with by a ‘division of property official’ (bodelningsförrättare), usually a practising lawyer, who will attempt a negotiated settlement. If agreement is impossible, the official will impose a division and the court will only be involved if one of the parties appeals.13Äktenskapsbalk (Marriage Code) 1987:230, chapter 17. Disputes concerning children are, however, dealt with by the district courts, although parents are encouraged to use local authority mediation services to try to agree residence and contact issues before issuing proceedings.
In Finland and Norway, mediation is bolstered by processes that make mediated agreements legally binding without the need for court involvement. In the case of Finland, a local authority child welfare officer gives the parents information and advice, and assists in reaching an agreement on residence and contact. The terms can then be confirmed by the social welfare board, making the agreement legally enforceable.14More information is available from the Finnish Department of Justice website.
Norway has made it compulsory for couples with at least one child under 16 to undergo mediation before divorce or separation.15Barnelova (Children Act) 1981, §51 and Ekteskapsloven (Marriage Act) 1991, §26. Resulting agreements about child access and related matters can be given legal force by the county governor, if both parents agree to the administrative processing of the matter.16Barnelova, 1981, §55. Also relevant is the fact that Finland and Norway have no-fault divorce at the request of one of the parties, and process divorce administratively, which reduces the need for legal advice.17Jon T Johnsen, ‘Nordic legal aid and "access to justice" in human rights – a European perspective’, page 242, in Olaf Halvorsen Rønning and Ole Hammerslev (eds), Outsourcing legal aid in the Nordic welfare states, Palgrave Macmillan (open access), 2018, pages 227–262.
A dedicated Agency of Family Law
The most comprehensive Nordic extrajudicial structure for family cases is in Denmark, where the Agency of Family Law (Familieretshuset) opened on 1 April 2019, taking over tasks previously handled by the Danish State Administration. The agency deals with issues including paternity, residency and contact, adoption, financial support, separation and divorce. Applications to the agency are allocated to one of three tracks: ‘simple’ cases where the parties agree on issues, such as divorce, agreed residence or maintenance; ‘less simple’ cases including interim contact and the recognition of foreign divorces; and ‘complex’ cases including disputed residence and contact.18Familieretshusloven (Act on the Agency of Family Law), LBK nr 766 af 07/08/2019, chapter 2.
‘Simple’ cases are administratively processed by the agency itself.19Familieretshusloven, chapter 8. In ‘less simple’ cases, the agency provides advice and conflict resolution services in an attempt to help the parties reach agreement. If they cannot, the agency can make a determination in many cases, but there are instances in which it must forward the case to court, eg, custody or residence disputes, significant contact disagreements or if there are complex factual or legal issues to be determined.20Familieretshusloven, chapter 9. ‘Complex’ cases are handled by an interdisciplinary team at the agency, who investigate the circumstances and provide advice and conflict management. When no further benefit is to be gained from these activities, the agency prepares a report for the court and refers the matter.21Familieretshusloven, chapter 10. Within the agency, a separate Children’s Unit provides information, support and counselling to children affected by family breakdown,22Familieretshusloven, chapter 5. and the agency is also the body that can appoint a legal aid lawyer for a party in complex and public law cases.23Familieretshusloven, §33. Many, but not all, of the agency’s decisions can be appealed to court.24Familieretshusloven, chapter 12.
The overall effect is that a large number of family disputes are resolved by agreement and/or administratively.25Statistics are not yet available. The agency has authority to grant divorces and to make binding decisions within its areas of competence. Only the more complex cases go to court, and only once efforts have been made to help the parties reach agreement and all preparatory investigations are complete. Comprehensive, concrete steps have been taken to create a ‘new and coherent family law system together with the family courts’.26Proposal for a law on the Agency for Family Law, Danish Ministry of Social Affairs and the Interior, 7 November 2018 (author’s translation). In contrast to the English and Welsh situation, it is not left to parties to find and utilise mediation services and then, if needed, make their way to court. A single entry point provides access to all relevant services, as well as a filter and preparation stage before potential court proceedings.
No provision is not an option
Access to justice in family law cases is essential, but it is evident that it cannot be ensured in England and Wales by removing legal aid and simply pointing out the availability of mediation. A comparison with other jurisdictions suggests alternative approaches, but all of these would require changes to the system by which disputes are formally resolved. We might, for example, consider allowing legally binding determinations to be made by local authorities or private lawyers, or even establish a new government agency to handle family cases, as in Denmark.
However, reviews of family justice in Scotland and in Northern Ireland have not resulted in recommendations for sweeping changes and such ideas are unlikely to be attractive in England and Wales either. We tend to be wedded to our legal system as it is and change at this scale would be expensive, although long-term investment could lead to more appropriate dispute resolution, with the added bonus of a more controllable budget. If we do not want to institute major procedural change, though, access to justice must be achieved within the court system, which means making legal aid available for private family law cases.
Proposition #3
A substantive structural reform of family justice must be urgently undertaken to ensure access to justice in private family law cases, failing which legal aid must be reinstated for them.
 
1     Calculated from data published by the Ministry of Justice (MoJ) in Legal aid statistics quarterly bulletins of October–December 2018 (28 March 2019), January–March 2019 (27 June 2019), April–June 2019 (26 September 2019) and July–September 2019 (19 December 2019). »
3     While there was domestic violence present in the marriage, the judgment does not dwell on that aspect, nor does it suggest that the dicta would not apply to a case where no such violence was alleged. »
4     Access denied? LASPO four years on: a Law Society review, The Law Society, June 2017, page 21. »
5     Proposals for the reform of legal aid in England and Wales, CP12/10, Cm 7967, MoJ, November 2010, para 4.69, page 43. »
6     Access denied?, page 19. »
8     Dr James Organ and Dr Jennifer Sigafoos, The impact of LASPO on routes to justice, Research Report 118, September 2018, para 4.8, page 27. »
9     The impact of LASPO on routes to justice, page 50. »
10     Access denied?, page 20. »
11     Review group’s report on family justice, September 2017, page ix. »
12     Review group’s report on family justice, para 7.45, page 56. »
13     Äktenskapsbalk (Marriage Code) 1987:230, chapter 17. »
14     More information is available from the Finnish Department of Justice website»
15     Barnelova (Children Act) 1981, §51 and Ekteskapsloven (Marriage Act) 1991, §26. »
16     Barnelova, 1981, §55. »
17     Jon T Johnsen, ‘Nordic legal aid and "access to justice" in human rights – a European perspective’, page 242, in Olaf Halvorsen Rønning and Ole Hammerslev (eds), Outsourcing legal aid in the Nordic welfare states, Palgrave Macmillan (open access), 2018, pages 227–262. »
18     Familieretshusloven (Act on the Agency of Family Law), LBK nr 766 af 07/08/2019, chapter 2. »
19     Familieretshusloven, chapter 8. »
20     Familieretshusloven, chapter 9. »
21     Familieretshusloven, chapter 10. »
22     Familieretshusloven, chapter 5. »
23     Familieretshusloven, §33. »
24     Familieretshusloven, chapter 12. »
25     Statistics are not yet available. »
26     Proposal for a law on the Agency for Family Law, Danish Ministry of Social Affairs and the Interior, 7 November 2018 (author’s translation). »

About the author(s)

Description: Anna Barlow - author
Anna Barlow is a researcher in the department of law at Åbo Akademi University, Turku, Finland.