LASPO and the law of unintended consequences

legal aid

I practised, from 1983 to 2009, in towns that were predominantly ‘working-class’, if I am permitted to use that term. In all three of those towns there was a heavy demand for a legal aid service and, in the first two of those towns I did what I could to provide such a service, at least until I tired of the ever-increasing bureaucracy involved, and the ever-decreasing returns. Whilst I was providing that service, legal aid work accounted for something like three-quarters of all the work I did.

I suspect that my experience was fairly typical for a family lawyer doing legal aid work during that period. Of course, if you were practising in a more affluent town then the proportion of legal aid work you did might have been a bit lower, and if you were practising in a really poor area you may hardly have been doing any privately-funded work at all.

Now everything has changed.

As I indicated above, the rot set in a long time ago, certainly in the 1990s, if not before (my memory fades). It took the form of constant government attacks on the legal aid system, whether by way of reducing eligibility, increasing the paperwork and bureaucracy involved in obtaining legal aid and getting paid, or reducing the amount that lawyers were paid for doing legal aid work, firstly by failing, for many years, to increase the rates of pay and then by introducing paltry fixed-fees, which often had the result that lawyers were working for nothing. As was no doubt the intention of successive governments, all of this had the effect of turning many lawyers, including eventually myself, away from legal aid work.

But that heavy public demand for legal aid still remained. Or at least it did until the advent of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which did away with legal aid for most private law family matters, in particular financial remedy claims following divorce and cases concerning arrangements for children. Now, those who are in need of legal assistance but can’t afford to pay for it have to fend for themselves.

I have already written here on many occasions about the awful effects of LASPO: the difficulties faced by courts dealing with vastly increased numbers of litigants in person, the litigants who are unable to obtain justice without representation and the two-tier nature of our modern justice system, where only the better off receive the service to which all should be entitled. I have heard many stories of people with genuine family law problems simply deciding not to go to court, for fear of having to represent themselves. For such people there simply is now no family justice system.

But it is not just the litigants themselves who are the victims in all of this. On Saturday a tweet appeared in my Twitter timeline from someone attending the annual Bar Conference. They were reporting upon a comment made there in a speech by Sir Henry Brooke CMG. Sir Henry is a retired Lord Justice of Appeal, and was the vice-chair of the Bach Commission, which recently published its report on access to justice. The comment read:

“Mothers are now denying fathers all contact with their children for fear, rightly or wrongly, that they will not be entitled to legal aid to help them if their father does not bring them back.”

I don’t think I have heard this before, but it comes as no surprise to me. It is the law of unintended consequences, clearly not studied by those who came up with the ideas behind LASPO (they may of course have fully realised this quite foreseeable consequence of their actions, but I will give them the benefit of the doubt). They will obviously have known that LASPO would cause great hardship to all those many thousands for whom legal aid would no longer be available. But it also had consequences for others, such as the fathers in this scenario and, more importantly, the children, who are being denied a relationship with their father.

Access to family justice is about so much more than enforcing the ‘rights’ of an individual. It concerns the lives and futures of entire families including, of course, the children. How can we claim to have a family justice system that makes the welfare of those children paramount, when they are patently being failed in this way?

We may never return to the ‘good old days’ of 1983, but surely we can’t stay in these bad days of 2017?

Sir Henry’s speech is well worth a read. You can find a transcript of here.

 

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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2 comments

The Devil's Advocate - November 6, 2017 at 9:53pm

I have told you many times before John until legislation for child and family protection comes into the reality of the human legal right to be a parent as past Justice Secretary, Ken Clarke directed in the Family Justice Review of November 2011, then the words you write in your blogs here will be forever recycled, or as I was advised recently as repurposed but for what ends no one knows until such legislation is enacted.

Andrew - November 7, 2017 at 11:13am

The most serious unintended consequence is the one which has not happened.

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There should have been a rash of cases of unrepresented litigants cross-examining the other party; painful no doubt and unattractive but the right to cross-examine the evidence against you should have been treated as inviolable and over-riding. But the judiciary took fright, and men, usually men, can now be found to have been violent, with all that follows, on untested evidence from a party with an interest in such a finding. What a triumph of injustice.

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