Vardags Family Law Essay competition 2023/24 | Eilidh Rowan

Eilidh Rowan - University of Law

Appropriate Support for All: Furthering Fair Access to Appropriate Professional Support in Private Family Disputes Post-LASPO

The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) removed private family disputes from the scope of legal aid. In turn, this removed the option of legal representation for many individuals who cannot afford to fund such representation privately. In its place, mediation has been promoted. However, this essay identifies that there are currently barriers to unrepresented individuals accessing effective mediation. It also highlights issues caused by individuals acting as unrepresented litigants in person (LIPs) where mediation is inaccessible or inappropriate. Further, it will consider the effectiveness of the legal aid available in exceptional circumstances, particularly cases of domestic violence. It will examine feminist critiques of LASPO and potential intersectional issues throughout. Finally, it will propose potential strategies, informed by alternative jurisdictions and academic literature, to broaden access to appropriate professional support in instances where individuals cannot access legal aid.

​Difficulties Accessing Mediation

Although legal aid is available for mediation, it is not necessarily accessible. Legal aid is only available to individuals qualifying under Part 1, Schedule 1 of LASPO. Schedule 1, Paragraph 14 allows provision of legal aid for mediation of family disputes. This should ensure people unable to pay for lawyers can still access professional support through a mediator.

However, the main route of referral to mediation has been cut. Hamlyn et al found that mediators pre-LASPO were reliant on client referral from lawyers. The House of Commons reported that there were 62,390 legally aided solicitor referrals for mediation in the 12 months preceding LASPO. Between April and October 2013 (post-LASPO) this dropped to just 20. Barlow and Hunter both identify that in implementing LASPO, lawyers were viewed as a problem, overlooking their key role in referring disputes to mediation. As a result, eligible parties must discover mediation on their own in order to access such support.

The Mapping Paths to Family Justice Report (MPFJR) highlights that solicitors were also the main source of information about mediation prior to LASPO. Mediation Information and Assessment Meetings (MIAMs) do provide an alternative way to access information about mediation. Applicants are also now legally required to attend a MIAM before issuing court proceedings. Yet, Barlow emphasizes that, as with mediation itself, clients must find their way to MIAMs. A person looking online, will face a bombardment of various sources but a lack of good, clear, and accessible information about MIAMs. Therefore, LASPO leaves people to find mediation both ‘unaided and uninformed’.

Even if an un-represented party discovers MIAMs, Hunter highlights that only applicants must attend, whereas respondents can refuse attendance and in turn, refuse to be educated about mediation. This is important because, as Hamlyn identifies, mediation is only viable if both respondent and applicant are willing to engage or explore the suitability of the process. Barry also stressed that where an applicant must attend a MIAM in the knowledge the respondent will refuse, it is an unnecessary delay and cost to the applicant. Thus, MIAMs may not actually support participation in mediation because some applicants attend merely to get the appropriate form signed, rather than seeing MIAMs as means of resolution. Hamlyn et al’s research found that partners being unwilling to attend a MIAM or consider mediation was the most used formal exemption (39%). Therefore, people who are interested in mediation can be blocked from accessing such support by the other party.

​Appropriateness of Mediation

Even where parties are able to access mediation, it is not necessarily an appropriate form of support. The MPFJR identified positives of mediation, including providing structure and opening communication. However, it also identified several concerns, including feeling pressured to participate and lack of legal advice. Regarding pressure to mediate, Hamlyn argues that clients on low incomes now often consider mediation their only option. Barlow finds pressure problematic because it challenges voluntariness of participation, which is a central principle of mediation. Clients feeling compelled to mediate often presages a rejection of mediation at the MIAM, or later mediation failure. Pressure to mediate created by LASPO can negate the potential utility of mediation.

Considering lack of legal advice, Hitchings & Miles identify that Pre-LASPO, solicitor support was engrained in mediation so that mediators could remain impartial while lawyers provided the ‘legal benchmark’ to evaluate mediation. By removing solicitor support, the system of mediation was disarranged. Hamlyn et al recognise that solicitors previously set client expectations, and filtered clients unsuitable for mediation. Whereas in MIAMs there is insufficient time to both explain everything necessary, and assess eligibility; therefore, clients have a weaker understanding of mediation. This can make mediating less productive.

Parties entering mediation can have unrealistic expectations of the support they will receive. Hitchings & Miles highlight that clients who were not referred by a solicitor expect free legal advice, while mediators can only provide information. Although some mediators do provide more active support such as ‘reality checking’ proposed settlements and suggesting viable options, this falls short of advice. Without direct advice, mediation requires insight and appreciation of inadequacies and potential consequences of proposed settlements which clients may be incapable of. Mediation is inappropriate if parties cannot assess the information necessary to effectively resolve their legal dispute.

​Negative Consequences Where There Are Inequalities Between Parties

Where parties cannot access legal advice, their resulting uncertainty may be exploited by the more powerful party. From a feminist perspective this could disadvantage women. Semple asserts that there is often a power imbalance, favouring men, in intimate relationships. Gewurz divides power into that operating in ‘the relationship context’ throughout a relationship and into proceedings, or as ‘dispute specific power’ which only becomes concrete during negotiations, for example, eloquence and negotiation skills. Dispute specific power may go unscreened because it only manifests itself once proceedings commence. The MPFJR found that unscreened power imbalances could skew negotiation and any settlement. Therefore, mediation may result in an unfair outcome for the less-advantaged party. This is especially concerning because Barlow argues that mediators are incentivised to screen in mediation even where inappropriate, to protect parties from the other options of self-representation or leaving the issue. Currently, parties may enter mediation even where it is not an appropriate form of dispute resolution in their circumstances.

Issues with Acting as a Litigant In Person

If parties cannot access mediation, or mediation is inappropriate, they may have to act as unrepresented LIPs in court. Trinder et al’s research found the number of represented litigants in court halved from 50% in the first quarter of 2011 (pre-LASPO), to 26% in the first quarter of 2014 (post-LASPO). This demonstrates how fewer parties are accessing legal representation. Genn recognises that the right to self-represent is considered important for access to justice so litigants can have their say in court. However, access to justice includes ability to participate effectively to achieve a just outcome, which is difficult for most LIPs.

One difficulty faced is that, similarly to when mediating, LIPs cannot access sufficient information. Almost every LIP interviewed by Trinder et al wanted more information on the court process. Even if LIPs can identify useful information online, this passive information cannot meet LIPs support needs because effective use of sources is dependent on a baseline level of knowledge and understanding. A wide range of litigants do not have this baseline knowledge and understanding. Both Trinder et al and Barry’s research indicate that there is no correlation between being highly educated, professional and articulate, and ability to effectively handle family law proceedings. Barry contends that it is about their legal capability not intellectual ability. It is unsurprising that LIPs lack legal capability. Afterall, pre-court processes, the family justice system, and its adversarial nature, are predicated on full legal representation from trained and experienced lawyers. Trinder et al found that almost all LIPs had difficulties with understanding court procedures or legal issues, and struggled to effectively prepare for hearings or identify what information is legally relevant. The amalgamation of these issues negatively impact LIPs’ abilities to convey their case effectively.

Genn identifies that LIPs whose cases have merits may lose because they cannot effectively communicate them, whereas a skilled advocate would identify and debate the relevant law/facts. Leaving LIPs unsupported negatively impacts case outcomes and has grave consequences for important matters. For example, inability to effectively present a case determines: the nature/extent of a parent’s future relationship with their child; risk children’s wellbeing; and, alters LIPs future financial position. The MPFJR highlights that lack of legal representation also threatens LIPs Article 6 right to a fair trial. It is inappropriate for litigants to participate in proceedings where it risks an inequitable case resolution.

Considering Exceptions where Legal Aid can be Accessed

Under LASPO, legal aid can be provided to parties where there has been, or is, a risk of domestic violence against them. This is crucial since domestic violence is common in family disputes. Hamlyn et al found there were allegations of domestic violence in 43% of finance cases and 65% of children’s cases.

To qualify for legal aid, evidence of violence/risk of violence must be provided. This evidence must fall within the requirements of s33(2) LASPO. Speed labelled these requirements ‘restrictive’ because they have prevented applicants accessing legal aid. For example, a core accepted form was criminal justice evidence, such as an arrest or caution for domestic violence. This was problematic because victims may not be prepared to report their abuse. For instance, experiences of institutionalised racism may prevent BAME women from reporting domestic violence to the police, because they want to protect themselves or a BAME ex-partner/abuser from an anticipated racist response.  Expecting this kind of evidence ignored complexities in domestic violence cases.

The evidential requirements have now been amended to include wider criteria, which more women can satisfy. For example, amendments in 2014 added referral to a domestic violence support organisation by a health professional as an accepted form of evidence. According to the 2015 Rights of Women (RoW) survey, this was the most used evidence in the following year. Further amendments made in 2018 allow even more women to access legal aid. This is a notable improvement in the level of support available in domestic violence cases.

In addition, under this amendment there is no longer a time limit on abuse evidence. RoW’s 2015 survey had previously found that if the previous 2-year time limit were not in place 23% more respondents would have had the prescribed forms of evidence. Consequently, removal of the time limit has also improved to legal accessibility in such cases.

However, clients must still satisfy a means test for legal aid eligibility. In RoW’s survey, 29% of women responding were ineligible for legal aid because their disposable income was above allowed limits. Even where clients income is above the means test threshold, they cannot necessarily afford legal representation because they may have other expenditure such as childcare or taxes. Where women cannot access legal aid, or afford legal representation, they can only mediate or act as a LIP. Barry, and Choudry & Herring emphasise that this could force vulnerable witnesses to present evidence in front of their abuser and endure their cross examination. This is inarguably inappropriate.

Where those affected by domestic violence cannot access legal aid and are left without other appropriate choices, they may refrain from the legal process. 52.8% of women unable to access legal aid did nothing as a result. So, although regulatory amendments have improved access to legal aid for those who have experienced domestic violence, it is still impossible for many individuals to satisfy qualification requirements and, in turn, access appropriate professional support.

Legal aid can be granted for exceptional cases, where necessary and appropriate to protect an individual’s human rights or other enforceable EU rights. This should ensure clients in challenging cases get appropriate support. However, use of exceptional case funding is rare. Even though exceptional case funding has been revised, numbers of applications are still significantly less than The Ministry of Justice hoped (there are around 1,200 applications a year rather than the anticipated 5,000). Since the scheme fails to catch sufficient cases, Mostyn J has judged it a ‘fig leaf’ rather than a safety net. McNeil is also unimpressed by the lack of successful applications, going as far as calling the scheme ‘woefully inadequate’. If people cannot access professional support through the scheme, then its existence only acts to conceal inadequacies of the law.

Alongside the limited access to legal aid, even people assessed as eligible may be unable to access legal aid. Slow pace of decision making by the legal services commission and mismatched court timetables worsens accessibility issues. Trinder et al highlight that there is often no decision on legal aid prior to going to court, leaving applicants to attend court unsupported. This means that applicants assessed as in need of legal aid can still end up facing the same issues as ineligible applicants.

This is an Equality Issue

Lack of legal aid impacts those who cannot afford to independently fund representation. Barlow identifies that LASPO widened the gap between those who can, and cannot, afford to privately fund legal representation. The significance of this is highlighted by Genn’s point that those on low or no income are disproportionately likely to do nothing to enforce their rights, often feeling powerless and helpless. Further, Wong & Cain raise that these individuals may take out loans, or extend credit at high levels of interest to pay for support, and this will only cause them more debt. Accessing justice should not be a matter of privilege and it should not come at the highest sacrifice to those with the least.

This increasing indebtedness particularly affects women who generally have fewer assets and more caring responsibilities. The financial asymmetry of parties is also compounded by the fact women are more likely to require recourse to the judiciary, with 63% of private family law clients being women. Further, it is important to recognise the intersectional nature of this issue because, according to the Equality and Human Rights Commission, BAME women often have lower incomes and resources in comparison to the general population. Therefore Heung argues they are more harmed by cuts. Overall, LASPO makes accessing appropriate professional support especially difficult for less-privileged individuals.

​Proposals For Change

For it to be possible for more people to access appropriate professional support, extensive changes must be made to the current process of resolving private family disputes. Given LASPO promotes mediation or acting as a litigant in person, an immediate improvement would be to improve the accessibility and effectiveness of these methods.

​Improving Access to and Impact of Mediation

Firstly, looking at mediation the issue of accessing information must be addressed. It has been suggested that a nationally trusted website would be beneficial. However, as identified above, online information is insufficient. Instead, Trinder et al recommend that initial legal advice is made available prior to mediation. This would ensure parties can access information, legal advice, and mediation referral.

Alternatively, the MPFJR suggests an alternative approach of publicly funding all MIAMs and incorporating legal advice and choice of process at this stage. If clients attending these MIAMs are unsuited to mediation, they would have access to funding for alternative out-of-court disposal, or court funding if necessary. Again, this would improve access to legal advice and information, as well as tackling issues of feeling pressurised to mediate, and of unsuitable cases going to mediation.

Further, Hitchings & Miles suggest mediation itself could be made evaluative, as in the US where mediators provide some views on sensible action. This can support self-determination and would help to overcome clients lack of legal capability.

​Improving Professional Support for LIPs

For LIPs to have a fair trial in family disputes, they need more support. To improve LIPs support, an authoritative website has been suggested, but as with mediation more than passive information is necessary. One option would be provision of self-representation services, like those in Australia, which provide LIPs with legal advice and help preparing court documents, whilst allowing LIPs to remain in control of conduct. Yet, Mckeown & Morse underline that this work would rely on pro bono aid, inappropriately shifting the responsibility away from government. Instead, it would be better to follow Genn’s idea of reducing the procedural complexity of the court system and encouraging judges to modify their behaviour to increase inclusivity. One way this could be done is by using everyday language. This would reduce the disparity between represented and unrepresented parties.

Alongside this, as suggested by Trinder et al, exceptional case funding should also be widened to include cases where clients would remain unable to participate effectively without legal representation. Making such changes would protect individuals from the challenges faced by litigants in person.

If these modifications to self-litigation cannot be effectively made, it may be necessary to protect individuals by preventing them from acting as LIPs. Genn highlights that in Germany parties must be legally represented in all but the most straightforward court proceedings. If LIPs are to remain such a part of the UK family court system, changes are necessary to ensure that all individuals can access fair family dispute resolution.

Conclusion