By Annie, Tommy, Mimi and Awele
Over the last decade, cuts to legal aid in family law have eroded access to justice for some of society's most vulnerable individuals.
Family legal aid funding has dramatically decreased since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into effect, leaving many people without the resources they need for quality representation. This has slashed the number of family law cases eligible for legal aid and resulted in a substantial increase in the number of unrepresented litigants. According to reports, the number of self-representing people in family proceedings has tripled since the cuts began.
The effect on mediation services has also been stark, where such facilities are supposed to lighten the case load in the courts. However, government funding for early legal advice has been cut, a key part of facilitating mediation. As a result, mediation assessments have dropped 62% since 2013, and successful agreements are down 53%. The number of family legal aid cases also fell from nearly one million in 2009 to just 130,000 in 2022, amid a growing "legal aid desert" across much of England and Wales.
The consequences are dire: parents seeking custody, victims of domestic abuse, and children in need of protection often find themselves navigating a complex legal system alone. Without legal aid, many are left with limited recourse, threatening their safety, wellbeing, and the fairness of judicial outcomes.
The impact for domestic abuse victims in the UK
Since the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), the number of new family law legal aid cases have significantly dropped, from 204,247 in 2012/2013 to 43,104 one year later, and had fallen further to 29,452 by 2020/21. These cuts have had a particularly negative impact on victims of domestic abuse. For these victims, the cuts have made their situation significantly worse, leaving them without the necessary support to stay safe and seek justice.
Legal aid has always been important for people who can’t afford legal representation. However, since LASPO was introduced, access to legal aid has been significantly restricted. Under these new rules, people can only get legal aid for family law cases if they can provide evidence of domestic abuse or child abuse, which can be difficult to prove at times. As a result, this means that many cases involving divorce, child custody disputes, and civil protection orders, are no longer covered by legal aid, leaving individuals vulnerable when left to deal with the legal processes alone.
For victims of domestic abuse, there are already barriers when seeking to escape an abusive relationship and seek legal counsel. For example, many victims can be financially dependent on their abusers, so paying for legal protection would be arduous. Without legal aid, many have to fend for themselves, which increases the chances of their case being dismissed or handled incorrectly. This, in turn, makes it more difficult to obtain important protective orders, which can be crucial for safety. Furthermore, the trauma from abuse can leave victims feeling lost and helpless when faced with the complexity of the legal process. This can result in victims foregoing legal proceedings altogether, even if their life is in danger. Additionally, there are cases in which the necessary evidence is either unobtainable or unavailable, so that victims disputing contact are forced to become litigants in person. As a consequence, survivors find themselves being cross-examined by the perpetrator of domestic abuse, or by the perpetrator’s barrister, and they may have to cross-examine perpetrators themselves. This leaves survivors in a very vulnerable position where they may not have access to a fair hearing.
Moreover, without the financial support to secure legal representation, victims may have no choice but to stay in these abusive relationships for longer, and there’s a risk they’ll drop legal action altogether. And for those that do attempt to represent themselves and seek protective orders, they may not be able to obtain these orders as they don’t have the resources to present their cases effectively. The consequences of these legal aid cuts go beyond just the individual victims. Domestic abuse is a widespread issue in the UK and when victims cannot access justice, it enables the cycle of abuse to continue, as the system can lead to victims feeling disempowered. It also places additional strain on other services, such as social services, domestic violence shelters, and law enforcement, all of which are already under pressure.
To address these issues, the government should reverse cuts to family legal aid and ensure that domestic violence victims are able to access the legal justice they need to help and protect themselves. Without such reforms, the UK risks allowing domestic violence to be normalised across the country, and allowing it to be a persisting issue for individuals and society as a whole.
The impact of cuts to Legal Aid upon low-income families
LASPO was intended to reduce those who could access legal aid, but in reality it has made it virtually obsolete. The main reason for this is that now those on even moderate incomes are barred from accessing legal aid, law firms are unable to offer free legal services to even the few lowest earners who can still technically access legal aid. One example of this effect can be seen in a journal article titled The impact of cuts in legal aid funding of private family law cases, in which a respondent lawyer stated that their firm used to be split 50/50 between private work and legal aid work.[1]
However, since the cuts in legal aid, that has now declined to 70/30, simply because the pay was not sustainable for the firm. Unfortunately, this seems more like the rule rather than the exception. In 2018, The Guardian found that the number of people accessing legal aid in family matters had fallen by 88%, and there is no indication that things have improved since.[2] Because of this, many families are being pushed into pursuing alternative dispute resolution (ADR), with mediation being made mandatory in divorce and child arrangement cases. This means that there may be a large group of low-income families who would have had access to legal aid, who are now forced to shoulder the burden of ADR themselves. While it is true that ADR can oftentimes be a quicker resort than the court process, the cost often results in litigants getting ‘piecemeal’ advice, as they essentially pay for what they can which likely leaves them less protected than they would have been. Overall, this means many are restricted from effective access to justice, with results that most impact those that already have the least.
Options remaining for those who don’t qualify for Legal Aid
Ways of getting legal advice:
Stemming from the Latin phrase 'pro bono publico', meaning 'for the public good', solicitors and barristers can offer pro bono free advice. One example is LawWorks, a charity supporting volunteers from 150 law firms and legal teams.[3] It's also common practice for universities to offer free legal advice. These will be run by students but supervised by qualified staff.
The Citizens Advice service is made up of Citizens Advice, a national charity, and a network of over 280 independent local members. They have over 600 premises in England and Wales which provide legal information and advice. They also offer online help through their website.[4]
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Numerous websites help those navigating the legal system. A few examples include:
o AdviceNow, which provides information on common family issues[5]
o Family Law Panel: a 'portal' for legal advice, resources, and regional signposting[6]
o Support Through Court: helps those representing themselves in court.[7]
Law Centres specialise in social welfare law, with a mix of salaried solicitors, trainee solicitors, and non-lawyer experts. There are 42 offices in England and Wales and they have 'shop-front' access to make them more user-friendly. They take on both individual and group cases, giving advice and offering representation at tribunals. Since LASPO their budgets have been cut substantially though, so many are forced to charge some fees.
There are also ways of financing proceedings aside from paying out of pocket:
·Private borrowing from friends, family, and partners can allow for flexible repayment, low interest, and avoid impacting credit ratings. If this is available it should be noted that these costs may be harder to recover or be taken into account by the court if the other party argues they are simply gifts, not to be repaid. To protect your position it is recommended to get a letter from the lender or formal Loan Agreement to prove that what has taken place is in fact a loan.
Commercial borrowing, such as from a bank or credit card company, are more easily taken into account by the court in reaching settlements, however can potentially mean higher interest and enforceable monthly payments. It is recommended to look into 0% interest credit cards and be aware that these can affect credit ratings and mortgage capacity.
Legal Services Payment Orders are applications made to the court once a divorce has been issued for a costs allowance to be paid from one party to the other - an order can be obtained compelling your ex-partner to pay your legal costs.[8] These require evidence that you have no access to funds from other sources though.
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If someone represents themselves in court, it may be possible to work in hybrid with a solicitor, receiving help on a partial or 'pay-as-you-go' basis. This means that they only pay for what advice they can afford and still run the case themself.
Crowdfunding is becoming more and more common with the rise of social media. There are certain rules controlling the actions of lawyers though, so it must be done carefully. Hence many use specialist online sites to help facilitate the operation, for example CrowdJustice.[9]
[2] https://www.theguardian.com/law/2018/dec/26/revealed-legal-aid-cuts-forcing-parents-to-give-up-fight-for-children
[8] Matrimonial Causes Act 1973, section 22ZA subsection (1)
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