Written evidence from Mavis Maclean

 

Justice Committee , House of Commons

 

The Future of Legal Aid

The following note addresses the four subheadings in the terms of reference listed below in relation to family legal aid in relation to children, indicating where more information has been submitted in the documents cited, and identifying CROSS OVER CHLDREN CASES as  priority for consideration.

1.Terms of reference addressed

i)LASPO impact on access to justice: see  also “After the Act: Access to Family Justice after LASPO”  Mavis Maclean and John Eekelaar, Hart Bloomsbury , 2019, particularly pages18-20 and chapter 11 p162-181 ( copy sent to the Committee)

ii)Views on the post implementation review : see also brief note on Evaluating early Legal Advice in Family Matters ,Maclean 29/07/19 submitted by email. re the Impact of court reform and IT see also “Digital Family Justice : From Alternative Dispute Resolution to Online Dispute Resolution?” Mavis Maclean and Bregje Dijksterhuis , Hart Bloomsbury , 2019 p193-237, available on request from the author

iii) What reforms are needed and what can be learned from elsewhere? For promising developments in England and Wales in response to the challenges for legal aid over the next decade and what can be learnt from elsewhere see After the Act chapter 11 p170-181, see also note by Maclean on the Australian ALRC Review, reports by Bruce Smyth, Australian National University , and the Canadian report “Investing in Justice” by Lisa Moore and Trevor CW Farrow 2019 Canadian Forum on Civil Justice ,all submitted by email.

iv) The impact of COVID : see on request draft report “ Family Lawyers and Family Courts at the Onset of the COVID19 emergency: a qualitative study of the experience of family practitioners April to September 2020” Mavis Maclean and Robert George , confidential as not yet final, October 14 2020

 

 

2.  The Future of Legal Aid in Family Matters relating to children

CROSS OVER CASES

It may be worth remembering that public funding for legal help with family matters was originally included in the Legal Aid and Advice Act 1949 in response to the stress placed on family relationships during WW2. The state recognised an obligation to help those in unhappy marriages to make a fresh start with the best possible provision for their children, not only to help individuals but to benefit society as a whole. Family Law was understood to be different from other parts of the law in its concern with future needs rather than past events, and with the welfare of children , the vulnerable third parties. It is this welfare function that is of primary concern in the current debate about the future of Legal Aid.  LASPO was intended to remove public funding in matters arising as a result of the personal choices of the individuals concerned. But in doing so, though continuing to fund parties  where the state has a direct interest ie domestic abuse and child protection, the Act went too far in removing private law children matters from the scope of legal aid. There are a large number of highly conflicted cases where parents are in dispute over contact and residence issues. But though these may appear to be using public funds on private quarrels, those affected are children who it can be argued are in need of protection from the impact of the parental dispute . This group of cases, noted by David Norgrove in 2011[1], known as “cross over cases” merits urgent reconsideration.

 

The background to LASPO

Following the increase in the divorce rate in the 60s, [2] and  simplification of the procedure in the  Divorce Reform Act 1971, by 1981 the cost of family legal was accounting for half the total spend. And as payment to family legal aid practitioners was based on hourly rates , concerns arose about lawyers being incentivised to escalate conflict .  There was little understanding of how legal aid solicitors preferred to negotiate , avoiding court whenever possible, often on behalf of the wives , with the aim of “keeping a roof over the children’s heads” .[3] Supplementary benefit at that time could cover interest repayments on a mortgage , and many divorced mothers were thus able to stay in the family home , and where a property settlement was made through lawyers the state recovered any legal aid  costs through the standing charge. There was more legal activity not in relation to the divorce itself but with the ancillary matters,  finance and children as home had ownership reached 69% in 2001[4], and parenting arrangements were becoming more complex as fathers became more involved. Government prudently searched for ways of managing legal aid costs and increasing value. The new approach of Alternative (to court) Dispute Resolution in the form of Family Mediation was energetically supported though it has yet to achieve popular acceptance. A more market based approach to legal services provision had been encouraged by the Clementi Review,[5] and legal aid was soon to be administered centrally by the Legal Services Commission with block contracting which concentrated work with the larger providers. This led to what have been called “ advice deserts”. And as part of austerity planning following the financial events of 2008 a new approach to family legal aid emerged , whereby there was to be no call on public funding if a matter was the result of an individuals personal decision making, culminating in LASPO 2012.

 

i)                    Impact of LASPO on family justice:

LASPO 2012 removed private family law from the scope of legal aid. Only public law children matters and evidenced cases of domestic abuse remained. It was hoped that mediation would provide an alternative to courts and lawyers. Between 2007 and 2017 the number of legal aid providers was to halve and the total spend on civil legal aid fell by 45% .But nevertheless the number of applications to court remained high, mediation takeup remained modest, and the proportion of parties without legal aid or assistance doubled.[6] Family law is different from other parts of the law in being largely concerned with the future welfare of vulnerable third parties . The Children Act 1989 requires that in any decision about the upbringing of children their welfare must be give paramount consideration by the court. But the impact of LASPO has fallen heavily on the children in private law cases where legal aid is not available to conflicted parents, but only to those in public law cases where the state has an interest in protecting children from harm or neglect. Sadly, a considerable number of highly conflicted private law disputes , the cross over “ cases ,may put a child at risk and in need of protection. The CAFCASS safeguarding check can help to identify these cases. It is hard to see the justification for any distinction in legal aid eligibility.

ii)                 The LASPO Post Implementation Review (LASPOR)  2019,  and assessment of IT development :

LASPOR acknowledged that in family matters “equitable outcomes could not be said to have been achieved”. The impact of mediation had remained limited, and the high expectations of digital developments in the provision of advice and information also had yet to be realised in divorce matters. Online applications for quasi administrative procedures including divorce applications work well. But court based dispute resolution requires representation and support . The Dutch Rechtwijser which attempted to provide online dispute resolution failed despite high levels of government support ,with a take up rate of 6% of divorcing couples of whom half reached agreement which the courts frequently refused to endorse as there was no way of confirming the information being used . [7] But new attempts continue, for example in Australia the Legal Aid funded simpler Amica system for making post divorce arrangements has just begun.[8]

Research into legal needs has for some time indicated the effectiveness of early legal advice from legal practitioners in resolving family issues more quickly[9]. There have recently been proposals from practitioners for pilot schemes to replace the former Legal Help element of legal aid[10].  The Legal Support Advisory Group initiative which followed the LASPO Review is working on developing pilot programmes in various areas of formerly legally aided practice . Such pilots would be expected to offer VFM, as in for example housing cases where homelessness might be avoided. But it remains problematic in family matters to measure the impact of an intervention in a children case , as what is best for a child takes time to become apparent. Areas where impact can be measured on a short timescale are inevitably more attractive to a funder.

It still appears that on line advice without face to face support , or written advice, or the possibility of returning if necessary when circumstance change , is not sufficient to help the majority of those with family issues ,especially if exacerbated by language or cognitive issues. We still lack research into the characteristics of those who are unable to resolve their family problem without approaching a court. It would be helpful to have data like that collected by the Australian Institute of Family Studies in Rae Kaspiew’s study of family court users which found in a sample of 1090 parents using the courts in 2014 that 59% had mental health issues and 41% alcohol or drug issues.[11]

 

iii)               What reforms are needed ? What can be learned from elsewhere ?

First we should we should recognise that there have been some positive developments here:

In digital work, the most exciting development recognises the key contribution of lawyers in providing legal support, but also the high cost of face to face professional assistance. An interactive programme COURTNAV for divorce applications has therefore been developed by the CA at the CFC which can be used by an individual alone or sitting with a trained adviser. Questions are asked in a simple way, and the information collected is collated and checked by an online solicitor and then used to populate a divorce petition. A similar interactive programme with inbuilt legal expertise has been developed for victims of domestic violence , FLOWS ,  Finding Legal Options for Women Survivors . The skill and experience of the lawyer is IN the machine. Furthermore in FLOWS a legal aid eligibility test is included, based on use of passporting benefits, and by the end of the session the user can be given the contact details for a legal aid solicitor locally who will help her. The online information collection process makes it economically possible for the lawyer to continue to work for the basic rate of pay from the LAA.

In the advice sector also there have been exciting developments in adding specific areas of legal knowledge and procedure to the training of lay advice workers who then went on to  successfully  represent parties in employment tribunals. [12] And in the university advice sector, the CLOCK project  based at Keele established by Jane Krishnadas has developed training for Community Legal Outreach Companions working with local courts and legal aid practitioners to enable students to offer valuable help to those attending court, help with legal aid applications,  and by providing links to specialist organisations dealing with for example domestic abuse cases. This project has now been extended to more than 10 other universities and has been highly appreciated by courts who were losing counter staff, as well as by local solicitors who without this help had been unable to afford the time to carry out lengthy legal aid eligibility inquiries for clients in difficult family cases. In particular, CLOCK is able to help parties in cross over cases ie private law re access or residence, with difficult features and high levels of conflict that the children involved are in effect in need of protection  and whose parents would, if it were a public law case, be eligible to apply for legal aid. BUT CLOCK and many other third sector projects cannot operate during the current COVID crisis.

The most exciting developments elsewhere require change beyond the remit of this Inquiry, for example the use of administrative settings to manage family conflict eg in Denmark or the use of the family court as a hub in Germany where the judge does not make decision but holds the family while they receive counselling to enable them to reach their own. [13]

 

(iv)             COVID impact

The COVID19 emergency has changed the profile of family cases coming to court, and increased the problems associated with unmet need for legal help with family matters. There has been an increase of 24% in domestic violence court cases, divorce related financial cases have been on hold, access and residence issues continue , and public law child protection work has increased as local authorities have been unable to monitor worrying situations and have been more ready to issue applications for care orders. [14]The President of the Family Division in March 2020 expressed the aim of continuing court business as usual and great efforts have been made to offer court hearings remotely especially where children might be at risk. But while this has worked well for short hearings, directions and case management , there have been acute problems in public law cases with accommodating interpreters and intermediaries, and where a hearing is urgently needed but parents are asked to give evidence online and hear a care order made alone and unsupported. But child protection cases continue to be heard, and legal aid is available to parents. There is some indication that more of this kind of legally aided work is being done by solicitors, who without the need to travel or wait around in court feel less need to instruct counsel. Future working by legal practitioners may see less use of offices, but less in court sharing of information and negotiation, and possibly less finely tuned judgements.

In our view there is therefore an urgent need to restore at least the Legal Help session , and to make sure that the lower courts are reasonably well equipped for on line working with both equipment and skilled support.

 

Finally, the recommendations from the recent Harm Panel Report have raised again the question of a move towards inquisitorial rather than adversarial justice. This might be hoped to reduce the need for lawyers. But the work of inquiring would have to be done by the magistrate/judge, or by a staff appointed to do so. At present we have CAFCASS , who are independent of the court ,but investigate, report to and advise the judiciary. They are overburdened and under resourced and could not be expected to do more without increased funding, and  the judiciary would require considerable training . And control of the case would move to the hands of the decision maker, and away from allowing parties to state their case. Such a trend is already visible in the President of the Family Division’s latest guidance  on saving court time in “The Road Ahead” in future by asking the judge to decide which issues should be considered and which evidence heard. This is why in France, for example, there is strong resistance to any such move, despite the fact that the French system is often mistakenly thought to be inquisitorial : it is in criminal justice but NOT in family justice. Indeed, some of the most interesting European family courts are in Germany, where the judge is required to try  not to make decision for a family, but to hold them in a safe place while they access the free counselling which retains the individual support function of the lawyer while adding the problem solving skills of the mediator or social worker. [15] While in Denmark the focus is on administrative management of family matters if at all possible before any resort to court.

There are alternatives or additions in other jurisdictions to the input of the legal profession in resolving family matters. But they rely on other services , administrative , welfare, and therapeutic.

As the Family Justice Council Debate in December 2019 concluded, distressed families will continue to need family courts and lawyers until we develop something more effective than the current diversionary tactics . And adversarial process by which each party states their case requires legal advice and representation. Without it vulnerable parties, particularly children and domestic abuse survivors, are at a disadvantage . The work of the court becomes even more lengthy and difficult . But above all, the children of conflicted parents without resources remain at increased risk of harm.

 

12/10/20

6

 


[1] Family Justice Review Final Report 2011

[2]  Eg  47 421 1970 divorces, by 1993  165,018 ONS Statistical Bulletin 2012

[3] See Family Lawyers: the Divorce Work of Solicitors, J Eekelaar M Maclean and S Beinart, Hart, Oxford, 2000

[4] ONS Home Ownership 2013

[5] Clementi D Review of the Regulatory Framework for Legal Services in England and Wales ,2004

[6] See A Flynn and J Hodgson eds, Access to Justice and Legal Aid ; Comparative Perspectives on Unmet Legal needs, Hart, 2017

[7] See B Dijksterhuis chapter 11 in Digital Family Justice ed Maclean and Dijksterhuis, Hart Bloomsbury, 2019

[8] Australian Government announcement June 2020 https://www.amica.gov.au

[9] See Ipsos Mori Analysis of the potential effects of early legal advice/intervention November 2017.

[10] Notably Jenny Beck

[11] Australian Institute for Family Studies “ Discovering what works for families : Evaluation of the 2012 Domestic Violence Amendments Synthesis Report “ October 2012, Table 2.2

[12] See Sam Kirwan ed, “Advising in Austerity”  Bristol Policy Press 2016

[13] See Maclean, Family Justice Council Debate 2019

[14] See Maclean and George draft report Family Justice in a time of Corona Virus ( confidential )

[15] See M Maclean R Hunter F Wasoff L Ferguson B Bastard and E Ryrstedt “Family Justice in hard times: can we learn from other jurisdictions” Journal of Social Welfare and Family Law 33(4) p319-343 2011, a report of an international seminar convened by MoJ during the Norgrove Inquiry. Also Thomas Meyson in “What is a Fmily Court for? “ papers from IISL Virtual Workshop September 2010 available on request from MM