Neoliberalism, family law and the cost of access to justice

Abstract

This paper uses ideas drawn from Wendy Brown’s critique of neoliberal approaches to governance, to argue that the ‘economisation’ of social policy such as welfare and legal aid and the family justice system, has resulted in an economic re-making of the ideas of justice, fairness and equality, which have traditionally underpinned these policies and the context of the family court. The paper will map the political context to the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO hereafter), in order to understand how it has been possible to justify the cuts to family law that were made under the statute. This will involve considering how attitudes towards social security and welfare have changed, and how a waning commitment to the original aims of the legal aid scheme has manifested in the specific context of family law. The paper will then explore the effects of this approach for the family justice system, specifically the post-LASPO family courtroom. Using recent case reports, the paper will argue that the family court is now ‘dilemmatic’, in that it is now caught between its traditional obligations of safeguarding fairness and equality, and the economic demands which constrain the ability of judges and court staff to ensure those obligations. Having considered the way in which legal aid policy and the family justice system have been approached through a solely economic lens, the paper will finally turn to examine how LASPO itself was justified in this neoliberal context. It will be argued here that the re-made 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. In understanding how traditional notions of justice have been re-drawn in economic terms, this 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 measured, if their arguments against the effects of these cuts are to be in any way effective.

Keywords:

• LASPO
• family law
• legal aid
• neoliberalism
• justice

Acknowledgements

Many thanks to the Centre for Law and Social Justice and School of Law at the University of Leeds for supporting the ‘post-LASPO landscape’ conference that brought the contributors to this special issue together. Thank you also to those at both this conference and the International Association of Legal and Social Philosophy (IVR) conference 2016, who gave such helpful feedback and support on various stages of this work.

Notes

1. This affirmed the existing expectation of potential applicants to attend MIAMS, which has been in place since 2011 under the ‘pre-application protocol’.

2. See also: R (on app of Rights of Women) v the Lord Chancellor and Secretary of State for Justice (2016), which slightly loosened evidence requirements for instances of financial abuse, but retains many of these difficulties.

3. Many thanks to Julie Wallbank for this point, and for her tireless reading of my early case law analysis.