Written evidence from the Divorce Surgery

 

Response to Legal Aid Consultation

 

 

  1. INTRODUCTION: WHO WE ARE AND WHY WE ARE RESPONDING TO THE CONSULTATION

 

We are specialist family law barristers and co-founders of The Divorce Surgery (www.thedivorcesurgery.co.uk), an Alternative Business Structure regulated by the Bar Standards Board.  So far as we know, we are unique in that we are currently the only providers in the country of expert family law advice to separating couples together, via a process we have developed known as ‘One Couple One Lawyer’.  Our barristers advise couples, whether in relation to issues concerning their children or money, as to how a judge would resolve their case in the event they ended up in the Family Court.  We will see couples at any stage of their separation, but aim to do so as early as possible.  Having been advised, couples are then in a position to start, and usually conclude, informed settlement discussions.  The core benefits of this novel approach are:

 

 

We have been fortunate to win a large number of industry awards and endorsements from leading Family Court judges for our approach.  Details can be found here: www.thedivorcesurgery.co.uk/awards/

 

We are in the process of applying for funding to digitise fully our information-gathering exercise, ensuring that lawyer hours are most cost-effectively targeted to where they can add most value.

 

We very much hope that, given the right governmental / regulatory incentives, other providers will start to offer One Couple One Lawyer soon. The advent of ‘no fault divorce’ is absolutely consistent with the more constructive approach to family breakdown we are proposing.

 

 

  1. MATTERS ON WHICH EVIDENCE IS SOUGHT

 

  1. How LASPO has affected access to justice views on the post-implementation review and the criminal legal aid review.

 

Our expertise is as barristers practising daily in the Family Court.  We believe it is well understood and equally well-evidenced that the effects of LASPO have included a very significant rise in the numbers of unrepresented litigants in person in family cases, with very considerable knock-on effects in the usage of valuable judges’ time.  Put simply, the downstream costs of removing legal aid from the vast majority of family cases have been enormous, eclipsing the savings brought in by LASPO by a wide margin.

 

We believe it is reasonable to assume that many couples have been deterred from pursuing deserving family cases because of (i) the cost of representation and (ii) the difficulty of self-representing, particularly if doing so ‘against’ a former spouse or partner.  Thus access to justice has been impeded.

 

  1. The role of the Legal Aid Agency

 

We believe that the LAA should act innovatively to:

 

 

In short, the LAA has an opportunity to set both parties on the road to sensible, early settlement discussionsJoint legal advice should be the default starting point before access to the Family Court is granted. 

 

  1. Recruitment and retention problems among legal aid professionals;

 

Again, we believe LASPO’s negative effect on the profession and on the availability of affordable, good-quality legal advice to clients is well understood and will be addressed by those offering such services

 

  1. The impact of the court reform programme and the increasing use of technology on legal aid services and clients;

 

Technology should be at the forefront of what the LAA can offer, and of what it promotes, but this is more an aspiration than reality at present (subject to what is said at 5, below).  We believe that there are two specific areas where technology can and should be used to provide legal aid services:

 

 

  1. The impact of Covid-19 on legal aid services and clients; and

 

It is clear that the pandemic has simultaneously (i) subjected families and relationships to unique stresses (emotional, physical and financial) whilst it has also (ii) made it much harder to obtain appropriate support, thanks to restricted availability of professionals and of the Family Court itself. It is now an official requirement of family justice that those it serves should not come to court unless this is strictly necessary.

 

Families need help now more than ever.  Legal aid is a vital part of the solution, provided this is appropriately resourced and well-targeted. We believe that investing in the provision of early legal advice will remove large numbers of clients from the court system, without compromising on access to justice.  This can be delivered online during Covid-19 and beyond.

 

  1. What the challenges are for legal aid over the next decade, what reforms are needed and what can be learnt from elsewhere.

 

The principal challenge for legal aid is the requirement to maintain access to justice, against a backdrop of an overwhelmed Family Justice system and a dearth of options for those priced out of paying for legal advice. 

 

As we have argued, we believe the answer to be the significant expansion of the availability of early stage, fixed-fee One Couple One Lawyer services across the country.  This strikes the balance between helping those genuinely in need, at affordable cost, whilst reserving the Family Court for the ‘hard’ cases.

 

 

 

October 2020

 

The Divorce Surgery

 

Harry Gates

Samantha Woodham

Co-founders