In his foreword to the Green Paper, Kenneth Clarke, Lord Chancellor and Secretary of State for Justice, states that the aim of the reform is “to ensure access to public funding in those cases that really require it, the protection of the most vulnerable in society and the efficient performance of our justice system”. In the current climate, it is unavoidable that the justice system is constantly reassessed to identify possible costs savings. The issue, however, is whether these reforms achieve their goal; and whether the Family Justice System can suffer such radical cuts and still remain fit for the purpose of providing access to justice for the very people that the reforms dedicate themselves to protect.

Identifying the most vulnerable

As the table (above right) illustrates, legal aid will no longer be available to any party involved in any ancillary relief or private law children proceedings (except the child, if that child is made a party pursuant to r 9.5 of the Family Proceedings Rules), save where there are concurrent proceedings in relation to domestic violence against the other party to the proceedings, or an order was obtained pursuant to domestic violence proceedings in the last 12 months, or where there is a conviction in relation to domestic violence against the applicant for legal aid or a member of the family.

The expressed reason for this exception is to ensure that a litigant, who would otherwise be in person, is not discouraged from engaging in proceedings, for fear of intimidation. The primary difficulty with this proposal is that many vulnerable people, who would find the process of conducting their own case unbearably stressful or frightening, will be discouraged from seeking redress.

Conceivably, the majority of these people will be women (many of whom will not have English as a first language) who may not have suffered violence of sufficient gravity to warrant pursuit of an injunction, but nevertheless are the victims of chronic bullying, intimidation and systematic humiliation and simply have no prospect of setting out their case in court in front of the husband. Family practitioners would certainly regard this conduct as domestic abuse, and are acutely aware of its insidious and corrosive effect, but it is seldom considered sufficient to warrant an application for an injunction.

Where a victim of domestic bullying does apply for an injunction, the likely outcome is an undertaking not to intimidate, harass or pester the applicant, coupled with a stern warning from the judge to proceed with the divorce before things deteriorate further. It seems unlikely that an undertaking – as opposed to an injunction – will suffice to trigger the Green Paper’s entitlement to legal aid. As a consequence, an invisible legion of victims will experience the court proceedings as no less an ordeal than the abuse they are striving to escape.

As an instrument to identify the most vulnerable participants in ancillary relief or Children Act proceedings, Family Law Act injunctions are, at best crude, and at worst, wholly misleading.

Impact of the reforms

It is, perhaps, obvious that the removal from the scope of legal aid of ancillary relief and private children law proceedings will have the most profound and direct effect on the Family Justice System, but it is important to be aware of the other areas as well. Family practitioners often deal with cases in which proceedings effectively stall whilst the client waits for resolution to their immigration, employment or housing dispute. It is frequently only the tenacity of the family practitioner and the family court judge that compels the institution in question grudgingly to provide a solution.

The main focus of concern, however, will be directed at ancillary relief and children.

Ancillary relief

The proposal is that all legal aid, other than family mediation services, should be excluded from the scope of the legal aid scheme apart from ancillary relief in which domestic violence is present. The following areas will be out of scope:

  • Family maintenance
  • Divorce, judicial separation, nullity and dissolution of civil partnerships
  • Financial provision on divorce
  • Claims under the Inheritance (Provision for Family and Dependents) Act 1975
  • Claims under s 14 of the Trusts of Land and Appointment of Trustees Act 1996.

The Green Paper states: “In 2008 73% of ancillary relief orders were not contested, indicating that the majority of individuals are able and willing to take responsibility for organising their own financial affairs following relationship breakdown.” (See Table 2.6, “Judicial and Court Statistics 2008”:

There is, unsurprisingly, no analysis of the influence that being legally represented might have had on this statistic nor, sadly, the likely impact on the remaining 27 per cent (the cases that fought) of removing those cases from scope. The figure is simply described as the percentage of cases for which no court hearing is listed.

The statistics do show, however, that 23 per cent of all ancillary relief applications were initially contested but subsequently were concluded with a consent order and 4 per cent being contested. This demonstrates that a significant minority of the total number of cases have been negotiated at court. These are the cases targeted by the cuts.

In the light of concerns about the potential inequality of arms arising from the removal of legal aid to parties to ancillary relief proceedings, the Green Paper proposes that courts will be empowered to make interim lump sum orders at any point in the proceedings “where [the Applicant] could demonstrate that they could not reasonably procure legal advice by any other means” (see at 4.161). However, for many parties this application will have to be made in person or by the solicitor acting pro bono, which places the party (again more likely to be the wife) at a considerable disadvantage.

For litigants in person, arguing for a lump sum order to obtain legal representation might be no less unachievable as conducting the entire case in person.


Private law children

The following areas will be out of scope:

  • Contact and/or residence (except r 9.5 guardian work)
  • Parental responsibility orders
  • Prohibited steps and specific issue orders
  • “Parenting” orders (possibly parental orders)
  • Adoption
  • Family maintenance
  • Divorce etc

According to the Green Paper (at 4.208): “In 2007, in the vast majority of cases parents agreed contact arrangements between them without resort to the courts. In only a small number of cases were the arrangements agreed by the court – 8% where the resident parent was surveyed and 17% where the non-resident parent was surveyed. In a further minority of cases, the arrangements were agreed with the help of lawyers or mediators without resort to the court – in 7% (resident parent) and 8% (non-resident) …We are concerned that the provision of legal aid in this area is creating unnecessary litigation and encouraging long, drawn-out acrimonious cases which can have a significant impact on the long term wellbeing of any children involved.”

This survey, “Non-resident parental contact 2007/8 (Omnibus Survey report no 38)” – which is available at – relies on a cohort of only 425 adults in total. The statistic included in the Green Paper provides no more than a raw percentage of those who “agreed” contact arrangements and those who did not. What is more interesting is that when the same cohort were asked which services they had come into contact with when making the arrangements, 58 per cent of non-resident parents (and 55 per cent of resident parents) had used a solicitor, 31 per cent had used Cafcass, and 26 per cent had come into contact with the judge (see ibid Table 4.7). Therefore, a significant proportion (74 per cent) had been able to reach an agreement having had contact with a lawyer, mediator, the Citizen’s Advice Bureau, a Cafcass Officer, court staff, judge or contact centre, with only 26 per cent having no contact with any of those agencies.
There is nothing in the statistics to indicate whether these cases are legally aided or not but it is evident that access to the solicitors, barristers, Cafcass officers, magistrates and judges who, amongst others, make up the family justice community, is relied upon by the vast majority of the general public who are making child contact arrangements and that this readily leads to cases being agreed between the parties rather than hindering or prolonging the process as alleged in the Green Paper.

Litigants in person

The removal from scope of so many aspects of family law will mean that the court will encounter a drastic increase in litigants in person.
The Green Paper anticipates the increase with a promise to conduct an assessment of the impact as part of this exercise. What is to be expected?
Hitherto, cases involving a litigant in person do not create a particular case management difficulty for the court system because the other side will often be represented and the preparation of practice direction documents or bundles fall to be undertaken by the first represented person (see Practice Direction of 27 July 2006).

Under the Green Paper reforms, cases being conducted by litigants in person on both sides will become the norm. Where the incidence of violence is a live part of the contact dispute, legal aid does not extend to the alleged perpetrator of violence. Thus the dilemma for judges of permitting a litigant in person to cross-examine a victim about the violence the former has perpetrated will become commonplace.

Furthermore, the proposed provision of legal aid to the victim of violence does not appear to extend to contact hearings at which it is necessary to establish findings of fact in relation to allegations of physical or sexual abuse of children, unless they form part of existing injunction proceedings.
There can be no doubt that these cases can be some of the most challenging cases to manage, with schedules of findings and consideration of police or medical evidence. They are also forensically complex, with the cross-examination of experts or even the child. The current proposals will inevitably lead to significant trauma to the very people the reforms are dedicated to protect.

Access to justice

It is important to explore ways to reduce overspending or waste. However, this must never be at the cost of providing ready access to justice to those who need it most and are least able to pursue it for themselves. The Green Paper has no regard to the impact on these members of society and will render the Family Justice System less able to perform the task that society has come to expect. ?

Ian Bugg is the (Family) Vice Chair of the Remuneration Committee of the Bar Council and member of the FLBA Fees Team.


Redrawing the legal aid landscape: The proposals

Areas of law where legal aid will be retained

Claims against public authorities
Civil claims arising from allegations of abuse and sexual assault
Community care
Debt matters (where the client’s home is at immediate risk)
Domestic violence
Forced marriages
Family mediation in private law children
Housing repossession claims
Immigration detention
International child abduction
International family maintenance
Mental health
Public law
Public law children
Registration and enforcement of judgments under EU Legislation
Representation of children in r 9.5 cases


Areas of law where legal aid will be excluded

Ancillary relief (where domestic violence is not present)
Clinical negligence
Consumer and general contract
Legal help for Criminal Injuries Compensation Authority
Debt matters (where the client’s home is not at immediate risk)
Non-repossession housing matters
Immigration (where the client is not detained)
Private law children and family (where domestic violence is not present)
Welfare benefits