Review of Civil Legal Aid

Resolution’s response to the Ministry of Justice Review of Civil Legal Aid.

Resolution has responded to the Ministry of Justice’s review to identify options which will improve the sustainability of the civil legal aid system, ensuring it is capable of delivering access to justice over the long term. We would like to thank stakeholders for their ongoing constructive engagement in the Review and would welcome their input to this call for evidence.

This response provides evidence about the current state of legal aid from the perspective of our members and their clients. It has been prepared by Resolution’s Legal Aid Committee, with help from the Domestic Abuse Committee.

Our members tell us that the reason practitioners are increasingly reluctant to provide legal aid services is because the level of fees is so low.  Family mediators are an important part of legal aid services and face similar issues to legal providers due to the low rates of remuneration (including for all issues child inclusive mediation), the lack of an increase in remuneration for so long, removal of the willingness test fee and onerous administration. Preparation for a MIAM, providing it and also undertaking an assessment of means can take much more than an hour, yet the fee is very low.

Since the removal of legal aid in most family cases in 2013, cases where both parties represent themselves are up 25% (now standing at over 40% of cases), and by over 40% in private law children proceedings. Litigants in person take up more Court time and put more pressure on Judges. Members report that if the other party is a litigant in person, they are often expected to do extra administration to ensure the case runs smoothly. If the solicitor is representing a party under a legal aid certificate this may mean they will not be paid for the work they do due to the way the fixed fees operate. Our solicitors report that they are often appointed in Rule 16.4 cases where there may be two parents who are litigants in person and a child may be the only party represented and the court needs assistance from a solicitor in the case.

Our experience is that these Rule 16.4 cases are complicated and lengthy – in part due to the presence of litigants in person – and the administrative burden for the case then rests on the child’s solicitor increasing costs to the legal aid fund.

Tailored legal advice should be available as an integral part of encouraging the use of out of court dispute resolution (DR) and maximising its chances of success, and to manage people’s expectations before the making of any application to court. Legal aid should be made available for other alternatives to court, including collaborative practice, as well as for Resolution’s single family lawyer scheme (Resolution Together), to ensure those with limited means are able to access solutions that are best suited to them.

The NAO in its review of Government management of legal aid stated that ‘Providing access to early legal advice and mediation has the potential to reduce wider costs to the system’. However, signposting to and  encouraging the use of legally aided family mediation, via early legal advice, is lacking.

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February 2024

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