Family Law

See also:

• 'Legal Aid, Sentencing and Punishment of Offenders Act 2012: LASPO reviewed' by David Emmerson and His Honour John Platt
• 'Legal aid for private law cases under s 8 of the Children Act: is there any light at the end of the tunnel?' by David Emmerson and His Honour John Platt
• 'Obtaining exceptional funding under LASPO – is it worth applying? (Yes)' by Carol Storer and Tom Royston
• 'The President’s judgment in Q v Q, Re B (A Child) and Re C (A Child) [2014] EWFC 31 – thinking through the implications' by Lucy Reed and Judi Evans

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Resolution member David Emmerson today told the Justice Select Committee that the family legal aid cuts are leading to a failure of justice for many people, particularly those forced to represent themselves in the family courts.

Mr Emmerson, a family law partner and mediator at  TV Edwards and a district judge, gave evidence to show the Committee how the impact of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) is causing enormous strain on the family courts and poorer outcomes for those going through the justice system. He highlighted exceptional case funding, the evidence gateway for legal aid funding for domestic violence and initial legal advice to talk people through their options and refer to out of court solutions as key areas for reform.

'Exceptional case funding, which was envisaged by the Legal Aid Agency as the "safety net" after the removal of most family legal aid, is not working', said Mr Emmerson.  Only eight cases were granted exceptional funding between April–December 2013. New stats released for 1 April 2014 to 30 June 2014 show 125 applications in the family category, with only four granted. This has meant that many people, including those with disabilities and sufferers of domestic violence, have been forced to represent themselves in a courtroom they are ill-equipped to deal with.
'The exceptional funding application form is so complicated that, if you can complete it, it’s almost proof that you can represent yourself,' he noted, explaining that the complexity of the application deters many litigants in person from applying.

The second point raised was the widening of the domestic abuse ‘gateway’, which grants legal aid to those who can prove that they have suffered domestic abuse in their relationship.

'The domestic violence and child abuse gateway is proving difficult to access for some of the most vulnerable applicants due to the eligibility requirements, which many people find difficult to obtain,' said Mr Emmerson. A crucial part of eligibility for the domestic abuse gateway is a letter from a GP confirming the abuse, something that Resolution members report that many clients find difficult to obtain, either because the service is not available or there is a fee attached. The evidence requirement, Mr Emmerson argued, should be widened to include other providers, such as independent domestic violence support workers.

The Committee questioned the factors behind the drop in family mediation numbers, which have plummeted by 45% in the years since the cuts to legal aid.

Mr Emmerson argued that legal advice at an early stage in proceedings provided 'a detailed analysis of a client’s situation and advice on out of court solutions.' Following the LASPO cuts this referral route is no longer available, and has been noted by the Ministry of Justice and Department for Education in their latest report A Brighter Future as a likely key reason for the drop in mediation.

'Lawyers are able to explain to clients how mediation works and how it could work for them – they were a crucial referral source to mediation,' explained Mr Emmerson.

Mr Emmerson appeared at the Justice Select Committee hearing alongside Susan Jacklin of the Family Law Bar Association, Nicola Jones-King of the Association of Lawyers for Children and Jane Robey of National Family Mediation.