Our family legal aid policy position
There’s been an increase in litigants in person (LiPs), a drop in referrals to mediation and people are being forced to fall back on the state for housing and benefits when their relationship breaks down, because they’re unable to secure the financial settlement the law says they’re entitled to.
To solve these issues, we believe legal aid should be available in family cases for:
- early legal advice
- alleged perpetrators and victims of domestic abuse, up to the point of a fact-finding hearing and Children and Family Court Advisory and Support Service (CAFCASS) report
- cases involving special guardianship orders (SGOs)
- finance cases
Legal aid for early legal advice should be available for all, subject to the usual means test.
This would allow the solicitor to:
- screen their client for abuse
- refer their client to mediation
- offer advice on self-help and digital solutions for clients where appropriate
- make sure children cases are handled from a child-first perspective
- consider whether it’s appropriate to apply for exceptional case funding (ECF)
- inform their client about the cost and impact of litigation
- warn their client about the statutory charge for finance cases
This approach will:
- help clients understand the benefits of mediation
- reduce the number of LiPs
- encourage people to prioritise their children’s interests above their own
- allow solicitors to refer clients to the Separated Parents Information Programme (SPIP), where they can learn how to manage conflict with their ex-partner and put their children first
Funding for alleged perpetrators and victims of domestic abuse
We propose that legal aid funding should be available to alleged perpetrators and victims of domestic abuse up to the conclusion of a fact-finding hearing in private family cases where children are involved.
At the moment, legal aid funding is only available to the victim, after they’ve provided evidence of the abuse to the legal aid agency.
There is no legal aid funding for alleged perpetrators of abuse. This creates two problems.
Firstly, the perpetrator of the abuse will often be an LiP.
They can therefore cross-examine the victim and, although this is being addressed through the Domestic Abuse Act, they may also call a child of the relationship as a witness, undertaking examination in chief of the child. This can be a distressing experience for both the victim and the child.
Secondly, there may be situations where false allegations of abuse are made and the alleged perpetrator has to represent themselves.
It’s in the best interests of families – particularly the children – for both parties to be represented during the fact-finding hearing, where the facts regarding the alleged abuse can be explored and established.
From 1 May 2023, people seeking and responding to Special Guardianship Orders (SGOs) will be eligible for legal aid in private family law proceedings.
Special guardianship allows children to stay within a family or friends’ unit, avoiding the need for them to go into the care system.
We’ve long argued for legal aid to be extended to SGOs but “unfortunately the changes don’t go far enough,” said Law Society of England and Wales via president Nick Emmerson.
We believe legal aid for special guardians should be non-means tested.
Many special guardians are grandparents, who fall through the justice gap as they are excluded from legal aid because of the capital in their home but may not have enough income from a pension to pay for legal costs.
“It is better for the child and better financially for the public purse if an SGO can be arranged and making legal aid for special guardians non-means tested would help achieve this.”
Reintroducing funding for finance cases
We’re calling for the government to reinstate legal aid funding for all finance cases, subject to the usual means test.
Our view is that this funding is effectively a loan – if the client keeps or gains money or property as part of a settlement, the government gets the money back through the statutory charge.
So if the statutory charge is administered efficiently, legal aid funding should be cost neutral for the government.
Reinstating legal aid funding could also save the government money – if people can afford legal advice on sorting out their finances with their ex-partner, they’re less likely to have to claim welfare and housing benefits from the state instead.