The Bach Commission on Access to Justice: Evidence from Resolution

This submission has been prepared by members of Resolution’s Legal Aid Committee.

1. Introduction
Resolution is an organisation of 6,500 family lawyers, mediators and family professionals who believe in a constructive, non-confrontational approach to family law matters. We also campaign for better laws and better support and facilities for families and children undergoing family change.

Over 2,000 of our members are involved in publicly funded family and/or children work. We believe that access to justice is a key public entitlement and have set our views on the current state of access to justice for those going through divorce or separation, as well as recommendations for the future of the family justice system.

2. Concerns about current system
Every day, Resolution members and the people we support see the impact of the measures implemented in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). We believe the legal aid reforms have had a severe impact on the ability of vulnerable people to access justice since they came into effect on 1 April 2013.

Our view is that the cuts have limited access to justice for some of those who need legal aid the most. Too much effort has focused on the point of crisis rather than prevention, and the number of people who have no choice but to represent themselves in court has risen sharply.

We call on the Bach Commission to recommend urgent reform of LASPO to ensure nobody is denied access to justice based on their ability to pay, and to work towards building a positive consensus around the necessary reforms. The narrative needs to be framed around how to give more people access to justice, as opposed to how to restrict legal aid.

2.1 Less people have family legal aid
Since the legal aid reforms implemented in April 2013, fewer people have access to legal support during their divorce or separation. Legal Help, which is the form of legal aid used to fund legal advice on divorce and associated issues has fallen to around one third of the pre-LASPO level, and continues to fall. New cases opened during October to December 2015 were 13% lower than in the same period of 2014. This restricts people’s potential to resolve their disputes, whether or not they use the courts. Before the introduction of LASPO, solicitors provided crucial initial advice for people going through separation under the legal aid scheme, helping them to understand their options (including out of court) and steps they needed to take. They were the major point of referral to out of court dispute resolution. In addition, publicly funded mediation numbers dropped 45% in the first two years post LASPO. They have since increased, although not on a consistent basis or to pre-LASPO levels, despite government objectives of diverting more separating couples into mediation. Almost three years on from LASPO, Mediation Information and Assessment Meetings (MIAMs) dropped by 14% from July to September 2015 compared to the same period in 2014.

Many family clients have multiple and not only family law problems. It is extremely challenging to signpost to meet other needs and for family law clients to get advice in related areas of law, including out of scope housing issues and welfare benefits, as it is now almost impossible to get specialist advice on first-tier benefit appeals.

There is an inevitable but unfortunate evidence gap around the volume and experience of those who, for example, may remain in conflicted and damaging relationships, delay resolving matters, or not resolve children and finance matters at all. We are particularly concerned about parents who may decide not to pursue contact issues or are unable to try everything to maintain contact for the child’s benefit.

2.2 Impact on vulnerable people 
Resolution is concerned that the current scheme is so restrictive and complex that even people who are eligible are not accessing legal aid, including some sufferers of domestic abuse. In our members’ experience, the eligibility and evidential requirements have not provided sufficient and flexible access to legal aid for domestic abuse sufferers. There is an evidence gap in relation to those sufferers who may no longer seek access to private family legal aid at all, or fail to obtain the required evidence, which cannot be formally reported.

There have been some changes to the gateway to private family legal aid since implementation, although government continues to resist accepting the word of the applicant and/or the solicitor regularly professionally screening for domestic abuse. The recent Court of Appeal ruling highlights some of the flaws in the system, including the misconceived and harsh two year rule. It is surprising that new interim regulations still provide for a cut off period, albeit of five years.

Even those who Parliament intended to help can be refused legal aid. Some prescribed evidence documents don’t persuade the Legal Aid Agency (LAA) even if they objectively give the answer. For
example, one of our members recently supported a client who presented to their GP. The GP’s letter stated that “… disclosed to me that her current husband has been violent towards her. Hit her on a number of occasions. She tells me that he’s also forced her to have sex with him against her wishes… She is naturally very low in mood and I have referred her to primary care psychology for further advice and counselling.” In response to the letter from the GP, the LAA denied legal aid stating “it is considered the evidence of actual or potential domestic violence provided does not justify the grant of public funding” and expected a second letter from the GP using template wording.

Nor is exceptional funding providing legal aid in cases where victims do not have the headline forms of evidence and/or people genuinely cannot represent themselves. On the introduction of the LASPO Bill the then Lord Chancellor said “Fundamental rights to access to justice will be protected through retention of certain areas of law within scope and a new exceptional funding scheme for excluded cases”. Yet the number of applicants securing exceptional funding is still pitiful.

2.3 Public and professional awareness of legal aid provision 
Our members are aware of a lack of awareness about what help is available among non-legal professionals coming into contact with vulnerable women, including the police. A Resolution member
recently became aware that one of their respected local organisations simply believed that legal aid was no more – in fact at least 15 vulnerable people they support currently need and are eligible for legal aid.

Lack of public awareness, combined with no awareness campaign, means almost a resignation that there is no legal aid.

2.4 More people are litigants in person
Under LASPO, the majority of private family legal aid was removed from scope. Together with the current financial eligibility rules and the LAA’s approach to means-testing, this has resulted in an increasing number of litigants representing themselves before the family courts. The House of Commons Library has collated evidence that says the number of litigants in person (LIPs) has increased. Their figures of 50,000 people representing themselves in family disputes in 2013 are, disappointingly, the latest official statistics available.

Some of those people would have benefitted from direction to publicly funded mediation and have simply missed out. There has been a recent upward trend, but it cannot be a coincidence that the number of mediation matter starts has fallen to 60% of the previous level since the implementation of LASPO.

When the MoJ was asked by Andy Slaughter MP in a Written Parliamentary Question how many LIPs there had been in each of the last three years appearing in the family court who had been cross-examined by their alleged perpetrator (and we know the serious issues this raises for the parties and the court from reported case law), the Government admitted that they did not keep a record centrally of this information.

The Government is therefore knowingly failing to collect the information necessary to fully assess the impact of LASPO. In it’s report Implementing Reforms To Civil Legal Aid, the National Audit Office has been critical of the limitations of the MoJ’s data in this area. This is an issue across all courts. A recent report, Justice Denied, by Transform Justice concluded that the lack of data means “unrepresented defendants in the magistrates’ courts are invisible in policy terms”.

Most importantly, in practice this means that, for example, a rape victim, where the perpetrator applies for contact when the relevant conviction is spent, or who has simply not been able to face reporting the abuse to or been screened for abuse by any of the prescribed evidence providers, can be cross-examined by her rapist.

In terms of the impact on the family court and their client, when they act for a party and one or more of the other parties is a LIP, our members consistently report that there is less constructive dialogue between and outside court hearings, and this works against constructive negotiation and settlement before final hearing. In a Resolution survey, almost 95% of members who responded said that the case takes longer than it could do, almost 70% said final decisions have to be made by the court without necessary expert evidence, and 80% that the legal or legal aid costs of the represented party increase.

This all adds further costs to the family law system, largely due to the extra court time cases involving a LIP often require. Anecdotally, our members report more children being separately represented in private children cases. This means that, whilst money is being saved at one end (in terms of cuts through LASPO), additional money is being required at the other stages of the process (in order to deal with the consequence of more LIPs).

Resolution is always looking for other economically viable ways to provide support for separating families.

We provide information for LIPs and support for members working in cases involving LIPs and with selfrepresenting parties. Resolution members of course support people to obtain evidence to access legal aid and undertake other work on an unpaid basis, but pro bono legal advice is not the answer. The reality is that Resolution members are already providing a lot of free advice and local pro bono support, and there is little, if any, capacity for more formal pro bono work.

2.5 Court fees are rising
It is only two years since the divorce fee was increased from £340 to £410. The Government has now increased the fee to £550 (without consultation, impact assessment or notice) which is an increase of over 60% since 2013.

The new fee of £550 is already well above the estimated actual cost of these proceedings of £270 (as at January 2015) but which we anticipate will decrease if the new divorce centres and/or digital
developments deliver intended efficiencies. The case for setting court fees purely on the basis of the cost of the service provided by the courts has not been made in relation to family proceedings.

There is no justification for charging the public more than the actual cost of using a service to pursue a legal remedy which is their right under statute.

As a result of the steep increase, many people currently in the process of separating will have received incorrect information as to the charge for lodging a divorce petition and in reality won’t have had time to get their petition in before the fee increase took effect. As an example, a Resolution member has reported to us: “We submitted a petition to the West Midlands Divorce Unit on 18 March 2016 without knowledge of when the Court fee was increasing. On 22 March 2016 we received confirmation from the West Midlands Divorce Unit that the fee had increased as from 21 March 2016. On 30 March 2016 we received a telephone call from the West Midlands Divorce Unit stating that the increased Court fee would apply!”

3. Practical solutions
Future changes to the family law, family courts and legal aid policy need to be evidence based and viewed and developed in a holistic way with consideration of the wider impact of policy changes.
Whilst we would not argue that parties to private family disputes should be given legal aid as a matter of routine, LASPO simply went too far. More moderate reforms to legal aid would save the taxpayer money whilst enabling those who really need access to legal aid to receive it. The merits of the individual applicant and their case would be a better starting point than having categories of law automatically out of scope. We set out other recommendations below.

3.1 Short term solutions
3.1.1 We recommend a dedicated legal aid awareness campaign, sensibly targeted and specifically aimed at those organisations working with domestic abuse sufferers and other vulnerable people,
including the police. No public awareness means even professionals don’t know what help is available and vulnerable service users are losing out as a result.

3.1.2 Regarding the private family legal aid gateway, Resolution recommends that:
a. a signed letter from a GP which makes clear that the GP considers that the applicant is suffering in line with domestic abuse, albeit that it does not use prescribed wording, should be sufficient evidence;
b. evidence include injunctions or findings from other jurisdictions, in line with convictions;
c. evidence be allowed from domestic violence support services in wider circumstances than currently prescribed;
d. in cases involving financial abuse, coercive or controlling behaviour, that the LAA should be able to accept a statement from the client as evidence. A GP letter, or other supporting independent evidence, doesn’t usually make sense in this area and is rarely available.
e. the LAA be given discretion to grant legal aid to a victim of domestic violence without prescribed evidence, perhaps limited to representation at a finding of fact hearing.

We don’t accept that making changes to the gateway will open the floodgates to more applications. Such changes will simply reflect the reality of evidencing abuse and ensure those who were originally intended to get help will still be able to receive legal aid.

3.1.3 We recommend making exceptional funding provision for family cases with serious consequences for parents and/or their children:
a. to take into account the problems that a sufferer of domestic violence without the prescribed evidence would have in engaging in negotiation, mediation and/or litigation with a perpetrator about a divorce or unresolved matrimonial finances/children issues.
b. to support parents faced with a quasi/’back door’ care application (i.e. an application for a child arrangements or special guardianship order made by members of extended family supported and funded by local authorities). This avoids a local authority being exposed to the various obligations which arise in relation to a ‘looked after’ child; a cause for concern in reported case law. In care proceedings non-merits and non-means tested legal aid for the parents would be available.

The Government seems very reluctant to give any examples of what sort of cases attract exceptional funding. We also believe that releasing appropriate details of the cases that were successful in obtaining such funding would increase access to justice. Our members currently have to publicise this amongst themselves.

3.1.4 In order to mitigate the impact of LASPO, we recommend that government monitors the number of LIPs appearing in the family court and being cross-examined by their alleged perpetrator. The judge may prevent direct questioning, but the process is only longer and more difficult for all those involved in the absence of an advocate for the perpetrator for these purposes. The family
courts make decisions which often have life-long consequences for the children involved (in private as well as public children proceedings where parents may be equally troubled) and need the best evidence possible to provide a lasting and satisfactory outcome for the child.

Legislation should be brought forward to prevent cross-examination of parties by alleged abusers in the family courts while ensuring justice is done to all parties (as in the Youth Justice and
Criminal Evidence Act 1999).

3.1.5 The LAA’s approach to matter start allocation fails to promote Help with Mediation. Although mediation starts are not limited for mediator providers, Help with Mediation matter starts are
included within allocations of limited schedules of Legal Help matter starts. It is recognised that mediation works most effectively when the process is supported by a lawyer. There should be no
limit to Help with Mediation matter starts.

3.1.6 We hope that following the Supreme Court’s decision, the Government will not pursue making those applying for civil legal aid subject to a residence test, to prove that they have been lawful
UK residents for the previous year. Resolution and its members remain concerned that applicants for legally aided family mediation will be subject to the test, creating an inconsistency in the way
legal aid for family cases is treated and contrary to promotion of the use of family mediation. The introduction of a residence test is unnecessary. It will lead to further confusion among the public
as to whether legal aid is available, thus potentially deterring some individuals on limited means from seeking support from a mediator in the first place. Applicants for family mediation should
be exempted from any residence test.

3.1.7 Our members support the principle of online working for making legal aid applications and submitting legal aid bills. However, the Client and Cost Management System (CCMS), which the
LAA made compulsory for legal aid providers to use from 1st April 2016, is simply unfit for purpose. 600 Resolution members recently completed a survey regarding the performance of
CCMS. The survey found that an overwhelming majority of practitioners – 82% – did not believe CCMS would be ready for compulsory use from 1 st April. This included users making Special Children Act applications, in respect of which CCMS use was already compulsory. Resolution continues to call on the LAA to resolve significant problems and make the improvements that are
desperately needed. Otherwise, CCMS will lead to even greater confusion, uncertainty, and frustration among the legal aid community and users of legal aid.

3.1.8 We recommend making wifi available across the single family court and the updating of legislation online.

3.2 Longer term solutions

3.2.1 Family law credit
Some form of initial advice from a professional, who can talk someone through the options available as well as the individual’s legal rights and responsibilities, is essential. Research conducted for the Ministry of Justice, Litigants in person in private family law cases, recommends that initial legal advice to facilitate dispute resolution and, where necessary, for initial preparation for court proceedings is made universally available.

Contrary to the government’s objective of more separating couples choosing mediation as an option for resolving family disputes, publicly funded mediation numbers are far from what was hoped. Couples do not seek services until the point at which they need them, i.e. on or after separation. It can be difficult to communicate the benefits of mediation, especially at a time when a variety of transition crises are thrown up by separation. The removal of legal aid for the majority of private family cases means fewer people going through separation, who would be eligible for legally aided mediation, are seeing family solicitors who would have previously helped them to make an informed choice about using mediation. Evidence from Resolution members who undertake mediation believe that it is the lack of lawyer involvement that makes it difficult to persuade people to use mediation.

Resolution proposes a form of “family law credit”—where anyone who meets the criteria for legal aid for family mediation is able to have an initial meeting with or online access to a family lawyer to help them gather evidence they need in order to access legal aid, or to discuss their options.

It may be a combination of services, so that people are able to receive help from a legal professional at the points in the process where they need it most—so even if they end up representing themselves, they have an initial discussion about what they need or want to do. This would help moderate peoples’ understanding of their legal positon, avoiding the need for some to enter the court system at all.

A family law credit would provide a more comprehensive system of support and enable vulnerable people to access the domestic violence gateway to legal aid, and/or learn about and choose more options to help them than just mediation. It is also likely to result in a higher referral rate to mediation, as it would restore a major source point of access that existed before LASPO.

3.2.2 Out of court dispute resolution processes
Resolution believes that, where possible, separating couples should be able to resolve their disputes without going to court. Government has focused its attention on mediation as the only alternative to court. But for some couples, other dispute resolution options such as collaborative law, solicitor negotiation, arbitration, or helping people reach agreements themselves can work better for their circumstances, while keeping families out of court and minimising conflict. There is no such thing as a ‘standard’ divorce or separation and people need to be aware of all of the options so they can choose what is right for them.

Resolution recommends extending the availability of legal aid for all dispute resolution options. People should be able to choose which out of court method will be most suitable for them, with funding available for the use of one chosen method—not just mediation. Otherwise their only choice is do nothing or go straight to court.

3.2.3 Court fees
There is a need to monitor the impact of the recent divorce fee increase, especially for those on limited means. Getting divorced is not a decision to pursue litigation. Unfortunately marriages come to an end and people decide to divorce for many emotional reasons, often after attempts to save their marriage and in mutual agreement. It is extremely rare for a divorce to be defended and it is divorce law which requires people to blame each other in the divorce petition if they do not want to wait for two years to begin their divorce. The vast majority of couples do not litigate at all in relation to resolving matters ancillary to the divorce. Nor will this fee in itself encourage parties to mediate or resolve issues through out of court family dispute resolution – there is no alternative to court as the court has to process a divorce- they will have to get divorced and pay the proposed fee whether they choose a suitable out of court option for resolving their finance and/or children issues further to a MIAM or otherwise, or need to make a separate private family law application to the court.

With careful analysis, there may be scope for payment of court time use or a final hearing listing fee on a means-tested basis, supported by a simple, transparent and fair remissions policy. We have long sought the reintroduction, in some form, of without prejudice offers that can be taken into account when the court considers whether a costs order should be made in financial remedy cases. We see this as crucial to providing incentives to settle, and to the court offering a fair forum for those making use of it.

3.2.4 Modernisation
The Government recently announced the closure of 86 courts, a measure which Resolution strongly opposes. In closing so many courts, the Government assessed the distance between courts that will be remaining open, but it did not assess where people live in relation to those courts, and didn’t take into account the cost and difficulty people will face in getting to court. At the same time, the Government announced an increase in spending on digitalisation, but presented no detail of what that will look like, or how facilities will be provided for vulnerable witnesses in remaining courts. This investment, when it comes, will be long after some courts have shut their doors. Resolution agrees with the need to modernise technology in courts, but we believe this investment should come before 86 further courts are closed across the county.

While there is room for more online services, we don’t see this as a viable alternative to family courts and their functions. Your children’s future and where they live is different to making a claim for, say, payment of a debt.

Having new technology, such as online court processes is one thing, but as the rollout of CCMS has shown, ensuring people can use them effectively is another. Resolution would welcome the Commission setting out a clear proposal for what face to face help people will require before or whilst accessing any online pre court or court processes.

We would emphasise the importance of preserving a clear and accessible entry point to face to face court services. In particular, regard needs to be had to victims of domestic abuse and their needs; family court users with emergency and/or protective applications; children and young people who attend court to give evidence, or who are given the opportunity to attend the court for some other reason; and accessibility for parents involved in care proceedings.

Whilst it is right to ask questions about alternatives to physical attendance and for how to use technology better pre or in court, thorough piloting and properly funded and tested resources for the technology involved is needed.

We also question the general practicality and desirability of remote services in family and children proceedings and where parties or witnesses have translation requirements. Being in a court building can in itself facilitate negotiation and the making of agreements; move cases along more quickly, especially in cases involving one or more LIP; bring security for witnesses; and compel witnesses to tell the truth.

The purpose of an FDR hearing in financial proceedings on divorce is to encourage settlement – in our members’ experience, it is difficult to ‘knock heads together’, say, via skype (albeit that this facility may have a role to play where a party is overseas).

If the technology was more available, we can see professional witnesses in family proceedings giving evidence from remote suites, but that is completely different to an individual who is unfamiliar with giving evidence and who may only appear before a court once in their lives; or the giving of evidence by and cross-examination of an alleged abuser.

At the most basic level, technology is currently failing in courts. Access to basic facilities, such as wifi, is lacking and results in lawyers being unable to best support their clients. In addition, the Government’s online legislation is not being kept up-to-date, resulting in additional research and time being spent unnecessarily – for example the copy of the Children Act still doesn’t include important changes made to the Act in 2014. This must be even more difficult for those seeking solutions for their families and children without professional support. A long term commitment to updating and developing online resources is needed.

3.2.5 Changes to family law
Resolution wants to see a family justice system that:
a. provides support through relationship breakdown;
b. puts children first, helping separating/separated parents to work together in the child’s best interests;
c. provides fair and lasting outcomes on relationship breakdown;
d. protects all those at risk of harm and sufferers of domestic abuse.

Resolution recommends: Advice and Information meetings
Making ’Advice and Information Meetings’ (AIMs) available earlier in the separation process, before an application to court is considered, and to make clear that they are not solely focused on mediation. This would enable couples to find out at the outset about available options and choose the right one for them. This is common practice among Resolution members, and we believe this approach should be available to everyone. A Parenting Charter
Current laws and definitions around parents’ responsibilities before, during and after separation, whether or not they go through the courts, are too complex and the language is not accessible. Resolution members have found that, despite most parents having their child’s best interests at heart, many don’t understand what their responsibilities are as a parent going through the separation process or when parenting apart.

Resolution proposes a ‘Parenting Charter’ clearly setting out what children should be able to expect from their parents if they are separating and what separating parents need to do in the interests of their children. We believe a greater shared understanding of rights and responsibilities of both parents (and their children) will reduce the likelihood of parents going to court. Divorce without blame
At present, in order to divorce, unless couples have been living apart for two years, one of them needs to apportion some form of blame—adultery or unreasonable behaviour. This often creates conflict and makes reaching a mutually acceptable agreement much more difficult. Removing blame from divorce will not make it more likely that people will separate. It will simply make it easier for people to manage their separation with as little conflict and stress as possible and reduce the likelihood that they will end up in court, reducing burdens on the family court.
Resolution proposes a new divorce procedure, where one or both partners can give notice that the marriage has broken down irretrievably. The divorce can then proceed and, after a period of six months, if either or both partners still think they are making the right decision, the divorce is finalised. Help people understand how their divorce will affect their future finances
The removal of legal aid has led to a rise in unrepresented litigants. Divorce law relating to finances is complex and difficult to understand. Outcomes can be difficult to predict, even for legal professionals. Section 25 of the Matrimonial Causes Act 1973, which determines how money is divided up on divorce, has fundamentally remained unchanged for the last 40 years.
The concern is that people separate with little or no understanding of the financial consequences of their break up, making it more difficult for them to reach agreement and placing a greater burden on the court system. With the average median household income at £32,600 most people do not have huge resources to divide on separation. The complexity of current law affects ordinary people, living in ordinary circumstances. Reform is needed to make sure they are fairly provided for after they separate. Resolution calls for clear guidance for people entering the court system, so that they are more aware of the potential outcomes and consequences, and for a wide-ranging reform of the financial provision system to achieve more clarity. The reforms to Section 25 of the Matrimonial Causes Act 1973 that Resolution wants to see emphasise independence and greater certainty on the level and timescale for payment of maintenance, with children’s interests at their heart.

Enforceable agreements (commonly known as ‘pre-nups’) should be permitted with suitable safeguards. This would provide certainty to people entering the courts that a previously-made agreement will generally be binding, unless it does not satisfy clearly identified criteria. Provide at least basic legal rights for couples who live together if they separate
Cohabitees are the fastest growing family type in the UK. And yet, in England and Wales, these people have little or no legal protection if they separate. It is possible to live together with someone for decades and even to have children together and then simply walk away without taking any responsibility for a former partner. This needs to change. Currently, a rapidly growing proportion of the population have limited rights or ability to access support if their relationship breaks down.

Resolution calls for a legal framework of rights and responsibilities when unmarried couples who live together split up, to provide some legal protection and secure fair outcomes at the time of a couple’s separation or on the death of one partner. Resolution proposes that cohabitants meeting eligibility criteria indicating a committed relationship would have a right to apply for certain financial orders if they separate. This right would be automatic unless the couple chooses to ‘opt out’. The court would be able to make the same types of orders as they do currently on divorce, but on a very different and more limited basis, and might include payments for child care costs to enable a primary carer parent to work.