Access to Justice and Family Law in a Post-LASPO Era

By Charmaine Chang


Since the 2012 Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), the demand for free legal advice has been growing steadily. However, due to the limited capacity of legal aid family lawyers, access to justice has been greatly impeded. Not only do multiple clients fail to engage with an affordable solicitor, but vulnerable family members have also been adversely affected by unresolved legal problems. As a student assistant in UCL Integrated Legal Advice Clinic (iLAC), the 4-month experience has shed light on the scarcity of free legal advice.

Effect of LASPO
A month ago, I received a call from an anxious elderly man, who was concerned about his daughter being abused by her husband. She had called several law school clinics and solicitors, but only to find that there was limited capacity for a free consultation. Looking for information online did not help him to bring a claim for his daughter on his own. The pandemic further worsened the situation when his daughter was stuck at home with her abusive husband. Unfortunately, as the clinic does not specialise in family law, the client was only able to receive one-off advice on family legal problems. This led to me wondering if one-off advice would amount to an effective solution to solve their urgent legal problems. While we did signpost him to other clinics with expertise in this area, the delay again, may deter them from seeking legal aid.

This problem is exacerbated by the fact that low-income earners often may not have the social network that extends to people with relevant expertise to help them. Research published by the Ministry of Justice found that most litigants in person in the family courts are unrepresented as they were ineligible for legal aid and could not afford representation . Given the complexity of family law, it is unlikely that victims could adequately represent themselves when navigating domestic abuse proceedings, divorce, or child proceedings. This is particularly true for victims with protected characteristics, be it long-term illness or disability.

The adverse effects of legal aid cuts in the family law context mainly affect women and children, which undermines substantive equality. The distress that stems from legal problems also seems to be worsened by the legal proceedings themselves. Placing the victim in the court, and potentially facing the unrepresented abuser only serve to perpetuate the experience of abuse. Worse still, direct cross-examination may even deter victims from pursuing legal protection, ultimately barring them from access to justice.

Alternatives to legal aid
While the legal aid cuts seem to increase the importance of pro bono lawyering for the most vulnerable, the lack of capacity in pro bono clinics ranging from LawWorks, the Bar Pro Bono Unit, Citizens’ Advice Bureaux to Law Centres and the lack of funding in the clinics means that they do not present the most suitable solution.

The backlog of hearings and the legal aid cuts may have prompted a move towards Alternative Dispute Resolution (ADR) but is arguably not the most helpful alternative for the vulnerable. In justifying the legal aid cuts, the government recognised that the legal aid reform will force individuals, businesses and public bodies to “take up mediation and other forms of alternative dispute resolution to help solve their problems”, which is in line with Family Justice Review. While the benefits of alternative dispute resolution – cost-effective, efficient, less adversarial etc are rightly recognised, some cases are not suitable for mediation. For instance, dealing with and cross-examining expert evidence to serious sexual, physical harm of a child, and cases where serious mental health issues are involved. However, the exclusion of these important cases is not sufficiently remedied.

Given that it is the state’s responsibility to provide legal aid, and to retain quality advocacy in the publicly funded legal system, it is clear that reform is needed to secure fairness in the justice system. As a law student with aspirations to practice family law, my pro bono experience gave cause to reflect upon the role of legal practitioners, students and the state to narrow the gap between the law’s stated ideals and the reality of its implementation. For the benefits it brings to the public and lawyers from the most junior ranks to the senior, encouraging a pro bono ethic is of paramount importance to relieve the damage being done to families to meet the need created by LASPO.

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