Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Joanna Miles (LA 45)

1. I am a University Lecturer and Fellow in Law of Trinity College in the University of Cambridge. I am also an academic door tenant at 1 Hare Court and Assistant Editor of the Child and Family Law Quarterly. The following remarks – all on family law matters – are my personal views, and should not be taken to reflect the views of any institution to which I am affiliated.

2. It is important that academic lawyers’ views about legal aid reforms are heard. They underline that opposition to the Bill stems not from self-interested concerns of practitioners worried about balance sheets, but from deep concerns – shared by all professionals familiar with the family justice system – about the impact that the Bill will have on families, their children, and wider society.

Summary

The aspects the Bill concerning legal aid in family matters suffer from several defects, many of which are cogently outlined in the FLBA’s written evidence to the Committee. I focus here on the criticisms that they:

- are not grounded in the empirical evidence

- underplay the problem of litigants in person

- raise issues under Article 6 ECHR

- afford inadequate protection to victims of domestic and child abuse

- provide inadequate support for litigants in financial cases

- create perverse incentives by neglecting lawyers’ key role in settling cases and drafting consent orders.

The need for evidence-based policy: lawyers and mediators

3. The Government claims that its proposals will yield improved delivery of justice and quality of family resolutions. There is scant evidence for this view. Indeed, the empirical literature – mostly not referred to in the Government’s documents – offers no support for Government policy. Above all, we must have evidence-based policy.

4. The Government, whose spokesmen persist in describing lawyers as "adversarial", has been extraordinarily inattentive to the extensive literature describing the essential role of family law practitioners in managing client expectation and helping parties to reach a settlement out of court: see Davis, Partisans and Mediators (Oxford. Clarendon Press, 1988), Ingleby, Solicitors and Divorce (Oxford University Press, 1992); Davis, Cretney and Collins, Simple Quarrels (Oxford, Clarendon Press, 1994); Eekelaar, Maclean and Beinart, Family Lawyers: the divorce work of solicitors (Hart Publishing, 2000); Maclean and Eekelaar, Family Advocacy: how barristers help the victims of family failure (Hart Publishing, 2009).

5. Meanwhile, the claimed benefits of mediation have been described by Professor Dame Hazel Genn as "empirically unverified" (2010) Journal of Social Welfare and Family Law 195 (see also Dingwall in that volume). Mediation depends for its successes on the voluntary commitment of parties to the process and the provision of full legal advice for the parties throughout mediation. There is no evidence that it will work satisfactorily for parties pressured into it for want of a realistic alternative and who have received only a bare minimum of legal advice going into the process. Moreover, one reason why mediation may currently work where it is used successfully may be because it is conducted "in the shadow of the law": the possibility of litigation to secure an outcome that reflects the parties’ legal entitlements encourages the stronger party to mediate reasonably. With legal aid for full legal advice and for legal representation gone, the position of the weaker party will be substantially reduced and the stronger party will feel rather less reason to participate in mediation at all, let alone to make a reasonable offer. It is telling that mediators are concerned about the Government’s proposals: e.g. Stepan "Slashing Legal Aid: Ironic Implications for Mediation" (2011) Family Law 305 and the powerful oral evidence of Deborah Turner of the Family Mediation Council to the Committee on 12 July.

The litigant in person problem

6. The Government commissioned a useful literature review of the existing domestic and international research on the experiences of litigants in person (Williams, MOJ Research Summary 2/11). The author of that report carefully explains the limitations of the data. I would add the caution that research conducted in the UK has necessarily examined the experiences of LiPs in the current regime, under which private law family matters are fully within scope. The pool of LiPs currently before the family courts is therefore smaller than can be anticipated once such matters are taken out of scope; and current LiPs may (as a class) have rather different characteristics from the new constituency of LiPs that will appear in future.

7. However, subject to all those caveats, nothing in the literature review augurs well for the Government’s policy. I would urge Committee members to read the Justice Select Committee’s report on the Operation of the Family Courts (HC518-I) from para 220, for their powerful criticism of the Government’s handling of data on this issue. Reference to the literature review in the White Paper and accompanying documents is less than thorough: in at least two places the documents (e.g. para 2.138, White Paper) mention only the issue of the length of proceedings involving a LiP (sometimes longer, sometimes shorter), without commenting that the inactivity of litigants whose cases are shorter might indicate a problem with that mode of representation: i.e. that inactivity very probably means that no proper case is being made for that party or, by extension, for the child at the heart of the case. No mention is made (in that part of the document) of the indications that LiPs tend to have lower educational attainment and that a significant minority in the family courts have specific vulnerability indicators, such that (unsurprisingly) LiPs often encounter serious problems in court, and the weight of evidence indicates that lack of representation negatively affects case outcomes (Williams, op cit). To remark, as the Government does at para 2.140 (White Paper), that "it is not the case that everyone is entitled to … a particular outcome in litigation" fails to grasp the elementary feature of the rule of law, namely, that, where the law prescribes particular rights and responsibilities, that is precisely what people are entitled to.

Article 6 ECHR and clause 9 of the Bill

8. Indeed, we may have real problems in terms of compliance with the demands of Article 6 of the European Convention on Human Rights. I develop the arguments in an article to be published in Family Law in September. The Government will contend that Article 6 compliance is assured by the availability of "exceptional funding" under clause 9, to be dispensed where necessary (or appropriate) to avoid a breach (or risk of breach) of the UK’s Convention obligations. However, it seems at best inefficient to depend on individual determinations that legal aid is required for compliance with Article 6 when it is possible to identify whole classes of case likely to require legal representation and so which should be brought within scope by amendment of Schedule 1 to the Bill.

9. Following Airey v Ireland (6289/73) (1979-80) 2 EHRR 305, the basic question is whether the individual would be able to represent his or her case "properly and satisfactorily" – if not, legal aid for legal representation will be required under Article 6(1). Airey and related case law sets out a series of factors to be weighed in answering that question, including:

a. whether this particular individual, given his or her educational attainment, intellectual capacity, knowledge and experience, would be able to cope as a LiP with:

i. the procedural rules and substantive law applicable to the case

ii. if necessary, examining and cross-examining witnesses

iii. if necessary, handling expert evidence

b. the issues at stake in the case, bearing in mind that

i. "marital disputes often entail an emotional involvement that is scarcely compatible with the degree of objectivity required by advocacy in court" (Airey, para 26), thus diminishing the individual’s ability to cope with the issues listed immediately above, and that

ii. the issues in a family case, which "regulates the legal relationship between two individuals and may have serious consequences for any children of the family" (McVicar v UK (46311/99) (2002) 35 EHRR 22, para 61), are regarded by the Strasbourg Court as more important than issues at stake in some other types of case (in that context, the protection of reputation in defamation actions)

The research on LiPs discussed above usefully highlights the difficulties that many individuals experience in representing themselves; those difficulties are only likely to worsen as the new influx of family court LiPs arrives. I shall highlight two particular categories of case which might be said, as a class, to qualify under Article 6 for legal aid such that appropriate amendment should be made to Schedule 1.

10. First, cases where children are parties to family proceedings under rule 16.2 of the Family Procedure Rules. Sched 1 para 13 of the Bill ensures that legal aid will be available for the child’s representation, yet no provision is made for the parents. These cases are necessarily highly complex and sensitive, featuring for example: serious allegations of abuse of the child (now covered to some extent by clause 11 – though see further below); complex medical or mental health issues or other unusually complex issues requiring determination; intractable disputes over residence or contact, including cases of irrational but implacable hostility to contact; international complications not involving child abduction; contested DNA-testing issues. These sorts of cases bring special and difficult procedural and logistic demands, in terms of marshalling evidence, examining and cross-examining expert witnesses, and so on. Indeed, in some cases the relevant complexity will be the parent’s own mental health. It will be immediately apparent that any or all of these factors quickly bring a case within the scope of Airey. It is therefore highly arguable that Article 6 demands that legal aid should be straightforwardly available for all parties to rule 16.2 cases, not just the child, and that this paragraph of the Bill should be amended accordingly. Parents and other adult parties in these cases should not be put to the – possibly unrepresented – burden of having to argue the case for exceptional funding in such situations. Nor should the vulnerable children involved in such cases have their welfare potentially prejudiced by the delay that may result from one parent representing him/herself in the case.

11. Second, cases falling under Sched 1 para 10-11 of the Bill, where (alleged) domestic or child abuse has triggered legal aid for the (alleged) victim / person seeking to protect the child in relation to family matters not directly concerned with that abuse (cf Sched 1, para 9 of the Bill). Crucially, no provision is made for the other party to be represented. Article 6 requires that each side must be "afforded a reasonable opportunity to present his or her case under conditions that do not place him or he at a substantial disadvantage vis à vis the adversary" (Steel and Morris v UK (68416/01) (2005) 41 EHRR 22, para 62). Although not a criminal charge, a finding of domestic or child abuse can have devastating effects on an individual and the case for support for legal representation for eligible individuals is as strong as it is for serious criminal cases. It is not yet clear what cases will fall within para 10-11: regulations will presumably prescribe the "triggers" that will provide sufficient evidence of relevant abuse to qualify cases for legal aid; see comments at para 13-14 below. But however defined, cases falling within these categories will commonly be very difficult emotionally; may require the examination and cross-examination of witnesses, including expert witnesses; and may call for important findings of fact to be made about detailed aspects of (alleged) perpetrators’ behaviour going beyond matters already determined in any prior criminal or injunctive proceedings. Even putting aside the deeply undesirable prospect of unrepresented (alleged) perpetrators cross-examining their own (alleged) victims (a practice specifically barred in the criminal context), this would appear to be another class of case in which legal representation for all parties to the case is called for under Article 6.

Abuse cases

12. Having discussed the question of legal aid for (alleged) perpetrators at para 11 above, I shall touch briefly on:

a. the definitions of abuse

b. the triggers for evidencing abuse.

13. Definition of abuse: It is surprising that the definition of domestic violence in Schedule 1 para 10 of the Bill, and of child abuse in para 11, do not correspond with those widely used elsewhere. In its recent decision in Yemshaw [2011] UKSC 3, the Supreme Court noted that the ACPO defintion has been used "to support delivery across government and its agencies through a common understanding of domestic violence" (para 24, quoting Home Office documentation). There seems no reason not to adopt that definition here, not least given that the "triggers" for evidencing domestic violence (not set out in the Bill) are likely to derive in part from the activities of agencies that use the ACPO test: the test in the Bill itself must be no narrower, or cases which it is intended to cover will be excluded from scope. Similarly, it is curious that para 11 does not mirror the concept of "significant harm" in s 31 Children Act 1989, which importantly includes the risk of harm arising from seeing or hearing the ill-treatment of another. A proliferation of legal definitions of the same concept is unhelpful, and these paragraphs of the Bill should be amended accordingly.

14. Evidential triggers: Key to the operation of these paragraphs will be the "triggers" by which abuse will exclusively be evidenced, presumably to be set out in regulations. The Government’s suggested list of triggers, amended from Green Paper to White Paper (Cm 7967, from para 4.64; Cm 8072, Annex A from para 34) are insufficiently wide-ranging. Evidence from the British Crime Survey about the various sources of help to which victims turn is crucial here. Very many victims approach neither the criminal nor civil justice system, so triggers based exclusively on these will not cover a huge proportion of victims. Inclusion of the MARAC is welcome, but will not catch a large additional number. Consideration should be given to additional ways of evidencing abuse, including evidence from health visitors, GPs, refuges, a mediation assessment, etc. It would also be advisable for the Director of Legal Aid Casework to have a sweep-up category: "any other circumstances in which the Director is satisfied that…". Where criminal convictions are used as the trigger, a spent conviction should still count: the spent conviction regime does not apply in relation to certain applications to work with children, and similarly should have no application here. As to civil orders, it should be enough that a civil order has been in force at any point in the last n months, not simply put in place in that time. Moreover, the current suggestion of 12 months is too short a period: the need to bring further legal proceedings in relation to the family may well trigger post-separation violence, even some years since the last injunction expired.

Financial remedy cases

15. It is not clear why Schedule 1 para 11 provides no legal aid for proceedings in relation to financial remedies, in particular for the benefit of the child (under s 15/Sched 1 Children Act 1989 or equivalent provisions of the matrimonial/civil partnership legislation), but also for the direct benefit of the child’s primary carer under the matrimonial/CP legislation. Financial security, particularly in the matter of accommodation, is essential to the child’s welfare in abuse cases. The Bill should be amended accordingly.

16. The creation of "orders for payment in respect of legal services" in matrimonial and civil partnership proceedings is welcome: clauses 45 et seq. However:

a. this should extend to financial proceedings for the benefit of children (esp under s 15 / Sched 1 Children Act 1989), and

b. legal aid should be available to make the application for this order. Ancillary relief is far from straightforward. The Government

"accepts that certain features of private family law, and particularly ancillary relief cases, may be complex in some instances. However, we do not consider that these issues are routinely as complex as other areas, and legal aid will remain available for exceptional cases where it is required [under article 6]" (Cm 8072, Annex B, para 15).

But these cases need to be viewed from the perspective of the individual litigant who has no familiarity with ancillary relief cases, or even with basic financial management. Many cases are not especially complex as ancillary relief cases go, but it may nevertheless be impenetrable by someone who has never had to deal with anything like this before (potentially raising Airey issues, see para 9 above). This is also, of course, an argument for legal aid to be made available for ancillary relief cases as a whole, not just for these orders to cover the costs of legal services.

Lawyers as negotiators and drafters, not just litigators

17. Indeed, as noted at para 4 above, empirical evidence shows that lawyers play a central role in settling cases. Note also the substantial majority of ancillary relief orders made by consent, i.e. based on the parties’ agreement, not the product of contested litigation. [1] Given the relatively limited capacity of the mediation sector, the vast bulk of these will be the product of lawyer-led settlement. The summary removal of lawyers from the system will have highly negative effects. Many of the cases that lawyers currently handle either are not suitable for mediation or will attempt mediation unsuccessfully, as the Government accepted in its evidence to the Justice Select Committee’s recent inquiry into the Operation of the Family Courts (quoted at HC 518-I, para 155). Yet the Government makes no provision for such clients, save to offer the uncertain possibility of exceptional funding on a case by case basis under clause 9 – or to let them act as litigants in person. It may be that a large number of cases will be found to qualify for exceptional funding – in which case the new Director will find that he has an onerous caseload of exceptional funding applications. Meanwhile, as the Bill stands, eligible clients capable of settling quickly with lawyers’ assistance will – quite artificially – have to be sent off at the taxpayer’s expense for mediation that they do not need, simply in order to release a small amount of funding towards very basic legal advice and assistance to prepare the consent order necessary to achieve finality of outcome (particularly in financial cases). It would be far more sensible to cater for all of these eventualities by funding lawyers’ out-of-court services, with or without mediation, directly from the outset. The Bill should be amended accordingly.

July 2011


[1] http://www.justice.gov.uk/publications/docs/family-matters-jcs-2009-chp2.xls , table 2.6 (tab 6).

Prepared 20th July 2011