GMLC campaign volunteer lead Hoejong Jeong looks at the legacy of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in the family courts, which has left three quarters of people attending family court without representation in matters as important as child custody.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which came into force in April 2013, removed many family cases from the scope of legal aid, meaning most people experiencing family law issues (such as child custody disputes or complicated divorces) could not get access to free legal support. Since this time, legal aid in private family law case has only been available for court proceedings where a litigant is able to provide specified evidence of domestic violence or child abuse (a full list of types of family case that may be eligible is here).
The number of people accessing legal aid fell by around 80% in the last ten years. Correspondingly, the number of litigants in person (LIPs) appearing before the family courts without legal representation has increased significantly, as many litigants cannot afford a lawyer.
Litigants in person can often find the process of going to court by themselves quite difficult. They face challenges articulating their problems in legal terms, including knowledge of the legal rules, principles, entitlements and requirements relevant to their case, and the parameters of legally possible outcomes.
An anonymous judge said “99.9% of LIPs do not understand what is going on in court or outside court; they don’t know a good point from a bad one; they don’t understand the law; they don’t understand what they have to prove.”
Private family law cases are brought by private individuals, which is normally associated with divorce. Separating can be complicated, so you might need legal help – for example, if you and your former partner can’t agree on child custody. Having no means to argue for your legal rights in the family court could mean some parents find it almost impossible to retain custody of their children.
An anonymous parent, who had to fight for access to his young child without legal representation, said going into court without a solicitor felt like “walking into the lions’ den”.
Despite the gravity of the outcome, however, the barrier to access to justice in the family court is getting higher. Government data revealed 23,881 parents who applied to open private law cases for child arrangements in 2017 had no legal representation. This figure has more than doubled since the legal aid cuts.
Although there is no standard time frame for a child custody case, some cases can take between 6 to 12 months depending on the complexity of the case. This means people with little understanding of the law are having to navigate themselves through a complex and confusing court process alone, often leading to prolonged proceedings and heightened anxiety for many parents and children.
According to a research conducted by the Law Society, people in financial hardship in our society are being denied access to justice, leaving them unable to address life-changing legal issues.
Civil legal aid is designed to help those on low incomes with legal costs to ensure they can get access to justice. However, this is clearly failing many people in family court, as the figures in this article suggested. Hence, restoration of the availability of legal aid for most private law family matters is urgently required to ensure that every parent is treated equally before the court.
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GMLC cannot provide specialist advice in family law but we have provided some support and guidance here, as well as a list of organisations who may be able to help.
Photo credit: Philippe Put, Flickr, 2020.
