In February 2019 the government published the long awaited review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, a piece of legislation that slashed legal aid from many areas of law, including most private family cases, from April 2013.
In the five years since LASPO came into force, the workload of the Family Court has continued to rise, while the Act’s aims of boosting mediation and diverting people away from ‘unnecessary’ litigation have failed to materialize. In addition, there has been widespread concern at LASPO’s impact on access to justice for parents involved in family court disputes. In particular, the removal of legal aid in private law children cases for alleged abusers has caused potential distress and injustice to those who have suffered abuse, to those who are wrongly accused of it and to the children left exposed to risk of harm either from abuse or from the severing or curtailment of a parental relationship if the court gets things wrong.
The review is lengthy and wide ranging, but of note are the remarks concerning the pressures on legal aid providers resulting from the cuts to legal aid rates in 2013, where it is said that: ‘Whilst the data seems to suggest the market is sustainable at present, there are clearly areas where we need to look further at remuneration in civil and family legal aid.’
The review also frankly acknowledges the gap between intended positive effect and the actual negative impact in the area of family law: the hope that, by cutting off their access to lawyers, conflicted parents would be dissuaded from litigating and diverted to mediation was misplaced. Nonetheless the reforms in this area are said to be ‘partially successful’ in that they have achieved the desired cost savings but without the anticipated reduction in litigation.
In relation to the difficulties of accessing even the limited legal aid available, the review accepts that ‘it is the right time to look at the means testing schemes. We will conduct a review into the thresholds for legal aid entitlement, and their interaction with the wider criteria… In addition, we are keen to address specific concerns in family legal aid eligibility and will bring forward proposals for extending eligibility for non-means tested legal aid for parents, or those with parental responsibility, who wish to oppose applications for placement orders or adoption orders in public family law proceedings.’
However, this does not mean immediate change. On 3 April, giving evidence to the House of Commons Inquiry into the LASPO review, David Gauke, Lord Chancellor and Secretary of State for Justice told the House that the review of the means tests for family legal aid would not be complete until the end of summer 2020, meaning in reality that there will be no improvements on the highly restrictive means criteria until 2021 (if at all).
The action plan sets out an intention to implement non-means tested legal aid for parents who wish to oppose applications for placement or adoption orders by the summer.
Applications concerning children who have been made the subject of final care orders are emotionally and legally challenging for any parent – those include not only placement order applications, but also applications to discharge care orders or special guardianship orders, applications to revoke placement orders or to oppose adoption orders. These are a challenge too for the courts to deal with fairly and efficiently in the absence of the support and structure that legal representation can bring. Applications to discharge care orders are already potentially covered by means tested legal aid, but the means threshold is so low that even parents with significant vulnerabilities and very modest means can find themselves ineligible for help.
The provision of legal aid for parents faced with freestanding placement applications that is referred to in the plan was promised by ministers as long ago as 2016, but has never emerged. Thus this proposal is at present a repetition of a promise not so far made good. Whilst the proposal for legal aid to oppose adoption orders is new, it isn’t at all clear that it goes far enough.
For instance, there is no suggestion of an extension of non-means tested funding for applications to revoke placement orders. This is ironic, because revocation applications are generally more likely to ‘have legs’ than applications to oppose an adoption order. This is because by their nature opposition applications are made long after removal of a child and at a point when the child is well established with their new ‘forever family’, meaning that even where a parent is able to demonstrate change the odds are stacked against them. It is worth noting that applications to revoke placement orders are often made in circumstances where there has been alleged or actual significant failure on the part of a local authority, such as a failure to progress a plan for adoption for a number of years leaving a child in legal limbo and without a permanent family, and where there is a particular public interest in matters being put right.
Special guardianship orders
The action plan promises there will be ‘proposals to expand the scope of legal aid to include Special Guardianship Orders (SGOs) in private family law.’ It is to be hoped that this will include funding for all special guardianship orders but the plan is very non-specific. The impact of the absence of legal aid for SGO applications can be particularly challenging in the context of public law proceedings, or where a freestanding application for an SGO is prompted by social services as an alternative to care proceedings (leaving the court and parties to deal with a case with many of the features and complexity of a public law case but with none of the resources). Presently many SGO applications are grudgingly funded by local authorities (but only if they support the applicants as carers). A good number of prospective special guardians are either left to litigate in person, or have to deplete savings in order to ensure that their kin can remain in the family. It is unclear from the proposals whether this legal aid will be means and/or merits tested, factors which could make a significant difference to how many families are helped by this reform.
Apart from the distant promise of some relaxation of the means test and some very discrete changes for particular types of application, what the review offers by way of concrete proposals for family law is limited. It seems tolerably clear that the reintroduction of legal aid for advising and representing those subject to serious accusations in private law proceedings (which has a knock on effect on the victim of abuse when it comes to cross examination) is simply off the radar, and many of the problems identified those feeding their experience into the review are not going to be dealt with by the proposed reforms.
In short, the review is not only long in coming, but short on solutions. The problems caused by the cuts to legal aid imposed by LASPO are so deep and widespread, that the action plan can do little but tinker at the margins.