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Researching reform: LASPO, legal aid and access to justice for children

Sep 29, 2018, 19:58 PM
family law, LASPO, legal aid, access to justice, litigants in persona
The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) received Royal Assent on 1 May, 2012. It focused mainly on reformation of the family justice system in the areas of youth crime, rehabilitation and, financial support for certain types of cases.
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The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) received Royal Assent on 1 May, 2012. It focused mainly on reformation of the family justice system in the areas of youth crime, rehabilitation and, financial support for certain types of cases.

The Act has, in the last few months become infamous largely due to the effects of the latter reforms. Indeed, there has been noticeable disquiet inside the legal sector, as the provisions contained in the Act start to take hold and impact upon practice. By and large that impact has not offered much comfort for legal practitioners, nor for families going through the courts. And the extent of that disquiet is now slowly starting to come to the surface.

A recent Bar Council survey found that 80% of respondents who worked in the family courts saw an increase in court delays since LASPO’s inception. Furthermore, 88% of respondents taking part in the survey also reported an increase in self representation. (We now know that over 70% of all family cases today are self represented). The survey also noted that 72% of legal aid lawyers engaging with the survey noticed a decrease in case work. These statistics culminated in an overwhelming feeling that LASPO had impacted upon people’s access to justice: specifically, the right to access legal aid.

Legal aid is a lifeline for society’s most vulnerable men, women and children. The gradual erosion of that support over the last twelve months has been watched by professionals and the public at large with more than a hint of horror. So much so, that the mounting concerns surrounding the legal aid cuts and the provisions relating to them within LASPO, culminated last week in not one but two challenges in court, both on the same day.

With the full blessing of the Law Society, the first hearing saw charity Rights of Women, who were represented by the Public Law Project ask permission to challenge the current LASPO provisions for victims of domestic violence seeking legal aid, which came into force in April 2013. The charity argued that the provisions were putting women’s lives at risk and needed to be reviewed. That hearing was successful; permission to challenge was granted and the full hearing is due to take place sometime next year.

The second challenge that day was brought by The Criminal Law Solicitors' Association (CLSA) and the London Criminal Courts Solicitors' Association, who argued that the consultation process in the run up to the legal aid cuts had fallen foul of the law. This sentiment was bolstered by a recent High Court ruling where Mr Justice Burnett presiding said that the consultation process was 'so unfair as to amount to illegality'. This was due to the fact that the Ministry of Justice had not allowed those engaged in the consultation to comment on reports written by accounting firms KPMG and Otterburn. These reports provided the basis for the current contract structure and fee cuts and so, were pivotal in deciding the fate of fees and contracts. And whilst this hearing was not wholly successful (the right to challenge the fee cuts themselves was not granted), the right to challenge the consultation process, was.

The most pressing question must therefore be, where does all this leave the system’s service users? And as the cuts begin to affect not just the sector, but those families who need help, just how badly does this impact upon children inside these family units?

A report by the Family Court Unions Parliamentary Group in April of this year highlights the damage being done to children as a result of the cuts. The report estimates that a staggering 68,000 children a year in private family law cases alone are, or will be adversely affected. The document goes on to detail how families are being turned away by law firms because they do not quality for legal aid – and how parents who are trying to establish contact with their children are left with no avenue in which to support that aim. An entire generation of children may find themselves without a loving parent as a result.

Victims of domestic violence may increasingly choose to stay in volatile relationships if they are unable to furnish the court with evidence of that abuse, and by implication any children in the home environment too will suffer. The emotional and psychological damage that living with an abusive parent might have on a child is an unacceptable risk we cannot take. There is also the very real possibility that the state may then intervene and remove the child from the family home altogether to live a life in care, without either of his or her parents. A cruel irony, which will cost the government significantly more in the long run.

Another concerning report, this time from the Children’s Commissioner, suggests that children, especially teenagers wishing to represent themselves in court, are being denied access to justice as a result of the cutbacks. The report also suggests that children’s human rights are being breached, rights guaranteed by the United Nations and signed up to by Britain, because of the lack of legal aid. Sir James Munby, the President of the Family Division is, it seems, in agreement. Having ordered that the court should cover legal aid in cases involving certain families in August, Sir James Munby sent out a strong message that access to justice was, and still is, an integral part of our court system, and by implication, a cornerstone of a democratic nation.

Faced with the complexities of legal process and left alone to confront the very many departments, documents and deadlines in a bewildering system which taxes even the most experienced adult minds, children are finding it impossible to protect themselves.

But they shouldn’t have to. We must make protecting our children a priority – and we can only do that if the right support is in place. Legal aid is the last vestige of a civilised society: it is not just a right, it is an imperative.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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