LIPS, LASPO AND THE STATE OF FAMILY JUSTICE INNER TEMPLE YEARBOOK 2014–2015
from receipt, currently taking just under seven days (perhaps
unsurprising given the unexpectedly light caseload). But
applicants with urgent cases would benefit from their case
going through a dedicated fast-track procedure. Third, there
are no short-cuts for children or those who lack capacity, who
ought by definition to be eligible for exceptional funding:
they cannot represent themselves, and need help to apply
for funding. Such applications must be subjected to merits
and means testing. But the process should be abbreviated for
those self-evidently incapable of representing themselves.
These practical difficulties aside, the very low number
of grants may be attributable to the Government’s
interpretation of Article 6 (fully discussed by the author in
the September and November 2011 issues of Family Law).
The Lord Chancellor’s guidance for exceptional funding of
non-inquest cases sets out several relevant factors drawn
from Strasbourg jurisprudence. However it states that the
overarching question is whether the withholding of legal
aid would make the assertion of the claim “practically
impossible” or lead to an “obvious unfairness” in the
proceedings. This language was adopted by the Legal
represented at the point of application; but in December
2013, that was so in only 4 per cent of cases, while cases
in which neither party was represented at application had
leapt from 19 to 42 per cent. The post-LASPO constituency
of LIPs may be more vulnerable than many pre-LASPO
LIPs. They are more likely, given their previous eligibility for
legal aid, to be young, of low income and education, and
for whom English is not their first language. As such, they
may have particular support needs and may pose fresh
challenges. Ambitions for robust case management in the
Single Family Court may be undermined by LIPs who cannot
engage effectively with the process, as illustrated by cases
such as Tufail v Riaz. Court processes and paperwork, and
the judicial role, can to some extent be adapted in order
better to accommodate the needs of LIPs. But such measures
themselves have costs implications and can only partially
mitigate the difficulties involved. Without early access to
tailored legal advice to assess the merits of their case, LIPs
may bring or defend cases that ought never to have troubled
the courts, or which ought to have taken less time to settle.
Of course, many families do not engage with any part of
“The commonplace nature of family breakdown does not
make its personal or social consequences any less serious
or less deserving of legal assistance.”
Services Commission’s pre-LASPO exceptional funding
scheme, following R (ota Jarrett) v Legal Services Commission.
Its origins, though, are undistinguished, coming from a
purported summary of the leading case, Airey v Ireland,
in a cursory admissibility decision, A or X v the United
Kingdom. And the commendably pithy language of “practical
impossibility” and “obvious unfairness” finds, at most,
limited textual basis in Airey and later Strasbourg decisions.
While it is clear that Article 6 confers no absolute
right to legal aid and that, “much must depend on the
particular circumstances”, the Airey judgment does not
use “exceptional” or its synonyms ‘special’ or ‘unusual’, or
‘practically impossible’ or similar. Instead, Airey held that
the provision of legal aid to those unable to afford private
legal representation was required where the applicant would
be unable to represent herself ‘properly and satisfactorily’
thereby depriving her of ‘practical and effective’ enjoyment
of her right of access to court. Whether that is so requires
a holistic appraisal of various factors in each case, including
the importance of what is at stake, the complexity of
the relevant law and procedure, and (in light of that) the
applicant’s capacity to represent him or herself effectively.
The Court also noted that the emotional involvement of
many parties to family disputes is “scarcely compatible with
the degree of objectivity required by advocacy in court”.
This is altogether broader language than that used
in A v UK. Many parties in the family court could be
said to be unable properly and satisfactorily to represent
themselves, having mental health, substance abuse and
other problems associated with chaotic lifestyles likely to
impair their ability to engage constructively with what is
very often an emotionally stressful process. Yet that is not
the test that is currently being applied under Section 10.
Without exceptional funding, more parties may try to
act in person. Litigants in person (LIPs) are not new in private
family law cases, but a rise in numbers was widely forecast
post-LASPO. Children and Family Court Advisory Support
Service (CAFCASS) data provides an early measure: preLASPO, in 20 per cent of children cases both parties were
the family justice system. But given the big drop in mediation
numbers, the removal of legal aid and largely stabilised
numbers of court applications in children cases, it would
seem that a gap has opened up. Where have those other
cases gone? Private ordering of family problems, particularly
in relation to arrangements for children, is generally desirable.
If parents can communicate and cooperate, they should make
such arrangements as suit them and their children. But that
will not always be possible. And in financial cases, private
ordering unsupported by careful legal advice may lead parties
unwittingly to lose important entitlements (e.g. in relation to
pension sharing) that could otherwise have been protected.
As Lord Neuberger has stated extra-judicially, the
primary duty of any civilised government – ranking ahead
of education, health and welfare provision – is to ensure
the defence of the realm from foreign threats and the rule
of law at home. Securing the rule of law, he said, requires
a high quality and independent judiciary; an accessible
and effective court system; and an accessible, high quality,
independent legal profession. It is unclear whether the
Government regards the legal system, broadly understood,
as a vital public service. Lord Neuberger has also observed
that while mediation has its part to play, it is ‘complementary’
to justice, not a substitute for it. Yet the Government’s
promotion of mediation, without funding lawyers’ out of
court services, risks it being pursued for its own sake. We
must guard against placing such emphasis on the process
of mediation that we neglect the substantive justice of the
settlements reached. We live in a society governed by law,
including those laws which govern family relationships. We
must do all that we can to equip our new Single Family
Court to deal with the challenges of the post-LASPO world,
and to maintain a profession of family lawyers able to
assist those vulnerable clients who need their services.
Joanna Miles
17 March 2014
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