To what extent has the introduction of LASPO hindered the ability to access justice in family law?
Author: Natasha Maurer – Sheffield Hallam University
The introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) established a monumental change to civil and family legal aid like never before. LASPO ultimately changed the scope of legal aid across the board by making substantial cuts to public funding and introducing a particularly small margin of eligibility, leaving many individuals unable to access the legal advice and representation they needed. Whereas, previously, a legal matter fell within the scope and qualified for legal aid funding, unless it was specifically excluded by the Access to Justice Act 1999, LASPO reversed this position making it more difficult for individuals to obtain.
The detrimental effect of LASPO has followed through significantly to family law. The general position is that public law proceedings and the representation of children remain within the scope under Schedule 1, Part 1 of LASPO however, the problem lies within private family law cases. LASPO has drastically restricted access to legal aid in private cases by creating a tight threshold to qualify for legal funding. Individuals will only be entitled to legal aid if the case involves applications for protective orders in relation to domestic violence e.g. occupation orders, non-molestation orders or injunctions, or a case where the applicant falls into one of the exceptional categories. The exceptional categories include: the applicant is the victim of domestic violence, the case involves a forced marriage injunction, the case involves allegations of child abuse, a child who is party to proceedings, or there are exceptional circumstances.
Whilst LASPO evidently creates a pathway for arguably the most in need of legal aid to obtain it, questions arise as to whether it adequately protects one’s human rights or infringes upon an individual’s access to justice. Following the introduction of LASPO in 2012, a provision for exceptional case funding (ECF) was included as detailed in section 10 of LASPO.5 This meant that funding could be made available in cases outside of the scope of legal aid where, without it, there would be a breach, or the risk of a breach of an individual’s rights under the European Convention on Human Rights or their rights to legal aid under EU law.
At first glance this provision appears to adequately honour the protection of one’s human rights by providing those most in need a recognised route to access justice, however, the ECF funding route is not as straight forward and simple as it appears to be. Individuals attempting to be granted for ECF would still need to qualify financially, meet the ‘merits criteria’ and demonstrate that if funding is not granted, there will be a breach of human rights or EU rights. This ultimately affects the most vulnerable and marginalised groups in society, as many are left isolated and unable to understand what steps to take to access the help they need. The ECF funding scheme was designed to be a ‘safety net’ for the most vulnerable and disadvantaged individuals in society. In practice, however, the ECF scheme is inadequate and does not provide the promised safety net for those struggling to navigate complex legal processes and effectively advocate for their rights. Within the family justice system many individuals have learning disabilities, mental health problems or other communication difficulties, which render them vulnerable and unable to conduct their own case. If the ECF scheme were operating as represented, then such litigants would be granted legal aid. In reality, many vulnerable individuals fall through the safety net unnoticed and are left battling with the emotional ramifications of having no access to justice or help ascertaining it.
This raises concerns regarding human rights, as it cannot be said that every individual, particularly those who are most vulnerable, have equal access to justice. This is further demonstrated by the obvious conflict between LASPO and Article 6 of the European Convention on Human Rights (ECHR). Article 6 of the ECHR details the ‘Right to a fair trial’. As governed by article 6 “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” However, it is impossible to uphold article 6 if individuals cannot access adequate representation or legal aid in general. It can be argued that article 6 essentially places pressure on legal aid as following the introduction of LASPO, many individuals were turned away from the justice system and denied the opportunity to have their case heard in court. This exemplifies a stark contrast between article 6 and LASPO, as article 6 promotes fair access to justice whereas LASPO seems to have taken it away.
Additionally, LASPO creates an exception where the applicant ‘has been, or is at risk of, domestic violence’ as detailed in Schedule 1, paragraph 12. On the surface this exception seems to promote fair access to justice for the most vulnerable in society however, the road to obtaining legal aid for domestic abuse victims is a long and narrow one. Research details that 34,000 survivors of domestic abuse have been denied support and have been “forced to continue living under the shadow of their abusers”, in the years since access to legal aid was scaled back. It is also reported that since the law was changed, the proportion of domestic abuse cases funded by legal aid had fallen from 75% to 47%. This clearly highlights the drastic effect that legal aid cutbacks have had on the most vulnerable in society, by denying them the help they so desperately need.
Furthermore, Regulation 33 of The Civil Legal Aid (Procedure) Regulations 2012 (as amended by The Civil Legal Aid (Procedure) (Amendment) Regulations 2016) sets out the evidence requirements of how one can prove one has been, or is at risk of domestic violence. Whilst the list detailed in Regulation 33(2)(a-j) appears to provide significant leeway as to how one can prove domestic violence, the list is exhaustive and only individuals who have one of the listed documents of evidence will qualify for legal aid. This poses problems however, as it shows no regard to the victims who are unable to obtain evidence from the list or worse, victims who do not report their abuse.
One year after the implementation of the new legal aid regulations requiring evidence of domestic violence, Women’s Aid carried out research into the effect of the regulations on women, affected by domestic violence, in accessing legal advice and representation. The reports were harrowing. It was concluded that 43% of women responding to the survey, who had experienced or were experiencing domestic violence, did not have the prescribed forms of evidence to access family law legal aid. Additionally, when asked if respondents had the required forms of evidence of domestic violence, 62.1% did not have a copy of the evidence of domestic violence prior to applying for legal aid and 77.8% did not know who to ask to obtain the evidence.
The evidence requirements also give little regard to those who do not report their abuse or who cannot prove domestic violence. Herring states that, ‘many victims are left with the unpalatable alternative of navigating the court procedures themselves to bring proceedings against their abusers in court or having no legal protection against the violence.’ If a victim cannot produce valid evidence or cannot prove the domestic abuse, they are left trapped in their situation with little to no options, as the evidence requirements are so strict. Furthermore, Women’s Aid found that 46.4% of respondents in their survey did nothing as a result of not being able to apply for legal aid. 32.1% had to pay a solicitor privately and 25% represented themselves at court. This clearly demonstrates that the legal aid regulations continue to restrict access to legal advice and representation and deny access to safety and justice to the very women, in particular, whom the Government expressly sought to protect from the removal of family law from the scope of the legal aid scheme.
Not only does the problem lie within fulfilling the evidence requirements for domestic violence, the problem also lies within obtaining it. In particular, the option of using medical reports as a form of evidence can be a complicated and arguably stressful one. Following a request by the applicant, medical professionals must sign a form stating that the “injuries [and/or] condition that the Applicant has [or has had] are consistent with domestic violence.” This may be challenging for doctors as the injuries may be consistent with domestic violence, but they are not in a position to confirm that the injuries were caused by domestic violence. Furthermore, in cases where the medical professional agreed to sign the form, Women’s Aid23 reported that 4.2% of applicants had to pay over £50 to obtain their form and 22.7% of respondents had to wait longer than 2 weeks to get it. This is damaging to victims of domestic abuse as it could imply that the journey they are going through to bring their abuser to court is insignificant and not taken seriously. In 2017, the Ministry of Justice undertook a review24 into the domestic violence evidential requirements for legal aid. It found that:
Difficulties in accessing certain pieces of evidence: such as the cost of acquiring it; the unwillingness of organisations, and health professionals in particular, to write letters; data protection issues when attempting to access evidence from the police; language barriers or other vulnerabilities all played a part in hindering individuals from evidencing their abuse. Evidently, the difficulties with obtaining evidence to prove domestic abuse clearly perpetuate a victim’s inability to access legal aid and in particular, makes the road to accessing this longer.
In contrast, whilst there are many issues surrounding evidencing domestic abuse, developments from organisations fighting for change cannot be ignored. Following the case of R (on the application of Rights of Women) v The Lord Chancellor, it was ordered that the references in Regulation 33 of the Procedure Regulations to the requirement that evidence of domestic violence be no more than 24 months old be struck through. In 2016, the Procedure Regulations were amended and the time limit on the validity of evidence was raised to 60 months. This was further amended in 2018, when the Government announced that the 5 year time limit would be scrapped altogether. This demonstrates a step in the right direction for change regarding the policies that LASPO introduced and highlights how charities, such as Rights of Women, are fighting to right the wrongs that LASPO has caused. However, this is only a small step in the right direction and more needs to be done to ensure that LASPO does not continue to harm our society and ultimately, our justice system.
It is evident that LASPO has completely changed the scope of legal aid, arguably for the worst. The cuts to funding and refusal to grant legal aid in many cases has had a significant detrimental impact on one’s ability to access justice, leaving many lost within the system or suffering in silence with not knowing where or who to turn to for this help. Individuals in society are being forced to either go without legal assistance or represent themselves which they are not trained nor experienced enough to do. Whilst LASPO continues to be reviewed by the Government following the years after its introduction, it does not consider those who have already lost out and who have had their human rights undermined as a result. Additionally, it can be argued that the introduction of LASPO has had the opposite affect in which the Government intended, as there is still significant pressure on the legal aid budget to accommodate all that need it and by ridding of the previous budget, it has opened the floodgates for a higher demand of people in need. It is clear that the law surrounding legal aid desperately needs to change to ensure that it priorities the most in need and vulnerable in society and allows fair access to justice for all.
Bibliography
Jonathan Herring, Family Law (11th edn, Pearson 2023)
Amnesty International, ‘The impact of legal aid cuts in England on access to justice’ (Amnesty International, October 2016)
Aubrey Allegretti, ‘Thousands of domestic abuse survivors denied help after legal aid cuts, study finds’ (The Guardian, 29 April 2022)
Family Law Bar Association, ‘Access to Justice in the Family Court’ (Family Law Bar Association, April 2015)
Farai Syposz, ‘Research investigating the domestic violence evidential requirements for legal aid in private family disputes’ (Ministry of Justice, 2017)
GOV.UK, ‘Get medical proof of domestic violence.” (GOV.UK, 14 December 2014)
GOV.UK, ‘Scope of Family Proceedings under LASPO’ (GOV.UK, 2 January 2021)
House of Commons Library, ‘Legal Aid: the review of LASPO Part 1’ (UK Parliament, 7 May 2020)
Public Law Protect, ‘Exceptional Case Funding (ECF) – Applying as an Unrepresented Person’ (Public Law Project, February 2017)
The Law Society, ‘Exceptional case funding – guidance for solicitors’ (lawsociety.org, 10 October 2019)
Women’s Aid, ‘Evidencing domestic violence: a year on’ (Women’s Aid, 2014)
