Significant legal aid changes have happened in family law since the Legal Aid Sentencing and Punishment of Offenders Act came into force on April Fools’ Day 2013. While the timing was unfortunate, the impact of the almost wholesale withdrawal of legal aid in family law cases is huge.
Since the changes have been introduced, legal aid has been limited in private family proceedings. It is no longer available for divorces or settlement of matrimonial finances. You can still obtain legal aid for family law injunctions (such as Non-Molestation and Occupation Orders) or arrangements for children, amongst other things. However, this is only available if there are proven allegations of domestic violence.
The changes to legal aid have meant that there has been a rise in people representing themselves in family proceedings. On 29 September 2016, the Ministry of Justice released statistics that in family proceedings over half of all cases had one or both parties unrepresented by a solicitor.
In 2014, the Government introduced £2m funding to assist litigants in person, including funding for Law For Life's Advice Now website and support for LawWorks advice clinics. However, the funding for these programmes is not indefinite and it is possible that once the money runs out, they will not be continued. These programmes also only provide limited help, where particularly vulnerable people may need additional help in understanding the family law process or indeed putting together their case.
The impact on many separating families has been so strong, Nigel Shepherd, the Chair of Resolution, has recently called for the withdrawal of legal aid for family law to be reviewed.
Often in family cases, representing yourself is not seen as a choice but a necessity, with many believing that legal representation is unaffordable for them. Some may distrust legal representatives. However, in making big decisions for yourself and your family without the benefit of legal advice; you may be risking your long term prospects. Although the best intentions are there, the emotional issues involved may mean it is not possible for the level of rational detachment that comes with having family legal advice, which some clients desperately need.
In addition, solicitors are trained to look at the long term implications of cases, particularly in matrimonial finances. The short term solution, while meeting an immediate need, may cause serious financial problems in the future. Family law cases are highly stressful and without the proper advice, a person may seek the quickest and seemingly easiest option, which in most cases would not be in their best interests.
‘Unbundling’ has also become the latest buzzword in family law. It is where you instruct a solicitor on a limited basis and they can assist you at various points in the case. It is not appropriate in every case as the person is running their own case, but with the benefit of a legal advisor in the background, assisting with technical matters such as drafting documents.