The post-LASPO landscape: challenges for family law

Around four years ago the Journal of Social Welfare and Family Law published a special issue on ‘Delivering Family Justice in Late Modern Society in the wake of Legal Aid Reform’ (2013, 35(1)), which was published last year as an edited book of the same name (Maclean, 2016). That issue was concerned with the point where the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) came into force on 1 April 2013, and the potential impact that cuts to legal aid for private family law disputes would have. It also looked at a number of welfare reforms which came into force, adding to the pressures on family life by further reducing the resources available to deal with them. This special issue stems from a conference (titled as above) funded by the Centre for Law & Social Justice, School of Law, University of Leeds. The conference brought together family lawyers, practitioners and members and leaders from campaigning groups and other third sector organisations to consider the impact of legal aid cuts on family law and on access to justice more broadly. Like the 2013 special issue, the conference noted the significant losses to social welfare, civil and family advice providers:

Citizens Advice Bureaux have lost £19 million of funding annually with consequent withdrawal of specialist help for approximately 120,000 social welfare law cases in 2014–2015, the Law Centres Network note that in the first year since implementation of LASPO nine Law Centres have closed, comprising a sixth of their membership and the Law Society report downsizing of departments reliant on legal aid work and consequent redundancies in the high street sector. (Sandbach, 2014)

Responding to this landscape, this special issue follows up some of the significant questions raised during the conference, such as: What is the impact on access to family justice and what are the significant challenges for family law? What role do human rights have to play? What are the particular challenges faced by domestic violence survivors? What are appropriate alternatives to court-based solutions and what is the future for family law?

Contributing a rights-based analysis of the position of victims in the courtroom, Shazia Choudhry and Jonathan Herring’s article revisits the route of human rights, which was identified in the 2013 special issue. They explore the duties of the state that exist under Articles 2, 3, 6 and 8 of the European Convention on Human Rights, and the extent to which the eligibility requirements for legal aid introduced by LASPO breach those duties and infringe upon the rights of individuals, particularly victims of domestic violence. They argue that the barriers to legal aid that now exist for victims of domestic violence are not only exponential, but rooted in a fundamental misunderstanding of the often concealed and long-standing nature of domestic violence. Due to the difficulties that victims are having in obtaining legal aid under the new scheme, Choudhry and Herring argue that the state is in effect requiring victims to litigate against their abusers, not only in pursuit of protective orders but also in relation to financial orders and child arrangements orders. Many litigants in person are not in a position to represent themselves in court, and this is particularly true of victims of domestic violence who can be additionally subjected to cross examination by their alleged abuser. This paper concludes that by allowing these scenarios to play out in court and by failing to ensure appropriate legal advice and representation for those in need, the state breaches the human rights held by victims, and also fundamentally fails in its duty to protect them against the risk of further abuse and violence.

Felicity Kaganas’ contribution shows how the Government has succeeded in making a virtue of eliminating legal aid almost completely from private family law by looking at the history of legal aid, by drawing on the neoliberal discourse of responsibility and its obverse, autonomy, as well as the view that law and lawyers have little to offer when it comes to such disputes. Her article is a pithy indictment of the state’s withdrawal from funding and indicates how the legal aid cuts have been justified by a turn to history. However, the history relied upon is not one which draws on the historical first principles of welfare, justice, rights and equality but one which relies on the view that unnecessary litigation should be avoided (referring to the Rushcliffe committee recommendations, 1945). Linked to this is the idea that family law is not the best forum to resolve private family disputes, except in a small range of narrowly defined cases and that parents need to assume responsibility for their own problems. Depicted as less complex and less significant than other legal issues, alternatives such as mediation are deployed to facilitate autonomous decision-making, despite many cases being unsuitable. The article concludes by looking at the impacts of LASPO and argues that it is women who suffer disproportionately as a result of the cuts.

In addition to the way in which withdrawal of legal aid funding has been justified, Rosemary Hunter’s contribution is concerned with the way in which mediation, as an alternative to family lawyers and the family court, has been promoted beyond demand. In her article, she traces the political emphasis that has historically been placed on mediation, but demonstrates that this emphasis has never been very successful. In the neoliberal context of LASPO, mediation has again been promoted as a means of diverting families away from public funding such as legal aid, and encouraged them to take responsibility for what are seen as ‘private’ disputes. However, Hunter demonstrates that public enthusiasm for mediation is still falling short of the government’s expectations. She argues that rather than continuing to try and enlighten or transform the behaviour of those coping with family breakdown by encouraging them into mediation, the government should instead respond to the demands of post-separation families that actually exist.

Anne Barlow’s contribution also considers the emphasis placed on mediation as the main route through which couples resolve their legal disputes. Her article examines whether, given the current policy reality, new models of mediation could and should be developed in order to deal more appropriately with higher conflict cases and an inevitably diverse range of parties. Barlow considers the feasibility of online mediation, as well as how information and assistance available online may be made more accessible given the varied needs and circumstances of users in the new era of family law. She also explores the potential that hybrid models of mediation which incorporate the support of lawyers and other professionals might offer the currently unmet needs of separating families who are attempting to reach agreements out of court. In discussing these routes for new approaches to family mediation, the article emphasises the need for mediation to adapt to the wide-ranging needs of couples contending with family breakdown, to enable couples to resolve their disputes in the post-LASPO context.

Picking up on the need to identify what these demands are in a post-LASPO context, Adrienne Barnett’s contribution provides a systems theory perspective on how family lawyers are being positioned, in counter-distinction to pre-LASPO conceptions, as ‘champions’ of domestic violence victims. Barnett illustrates what can be learned about the operation of family law in cases involving litigants in person, who are regarded as generating huge problems for the family courts, rather than as suffering from lack of legal representation. The article concludes by stating that although the processes of the family law system are perceived as leading to a crisis for justice, family law will survive without lawyers due to the resilience of judges who continue to ensure the system runs legally. Furthermore, against the popular view that mediation might supplant law, law could instead expand into mediation, as increasing numbers of lawyers undergo training. Barnett argues that the strains placed on the system, and the concern for domestic violence victims, could have led to an opportunity for reforming family justice processes. However, no progress in substantive law and legal process have been made. Indeed, victims are cross-examined by alleged perpetrators because of the legal system’s protection of their due process rights.

Building on the ‘crisis for justice’ discussed in Barnett’s paper, and the neoliberal discourse used in Hunter and Kaganas’ paper, Jess Mant’s contribution explores the way in which it was possible for the LASPO cuts to be implemented and justified. Drawing on policy and recent case law, this paper argues that political commitment to the principles of equality, justice and fairness has waned in the context of increased emphasis on the importance of making economic savings and encouraging individualised responsibility. The author argues that the notions of justice, fairness and equality have been repurposed for economic aims, and that this is a symptom of a wider loss of commitment to the original substance of these principles. The paper concludes by arguing that family lawyers, practitioners and academics operating in a post-LASPO context must explicitly reject the economic terms of value against which these notions are now measured if arguments against the effects of these cuts are to be in any way effective.

The 2013 special issue highlighted some potential routes to addressing the potential injustices expected in the wake of LASPO. Largely, this involved a call to strengthen our commitments to shared resilience and social justice. Further, the 2013 issue suggested that austerity should be a trigger to stimulate responsive, evidence-based policies, as well as ingenuity and resourcefulness. In picking up these ideas in the post-LASPO context, where we are beginning to see some of the very tangible effects of the withdrawal of legal aid from family law, this special issue stresses the importance of mapping the state of access to family justice and the impact that austerity is having on family law and its users. Shared resilience and a strengthened commitment to social justice are now more important than ever in this context, and the contributions to this special issue together emphasise the importance of reflexivity and innovation in approaching the task of identifying and responding to the very real challenges that are now developing within family law, namely how to reach and support those in need of meaningful access to family justice.

Jess Mant and Julie Wallbank
Centre for Law & Social Justice, School of Law, University of Leeds, UK
[email protected]