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In England and Wales, legal aid has now been withdrawn from most private family cases and the exceptional case funding scheme is not fulfilling its aim of preventing breaches of the ECHR.4Access denied?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.

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.

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.

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.