The bleak legacy of the 2013 legal aid cuts: a rise in litigants in person and a family court system in crisis

Anyone who has navigated the divorce process or had any involvement with the family courts will know the unique stresses it brings and the emotional toll it can take. For those able to instruct a solicitor to guide them through the process, this can be a crucial source of support, as well as legal advice. For those who cannot afford legal representation, the stress and pain of their circumstances is compounded by the challenges of dealing with a complex, confusing and overburdened family law system.

The cuts to legal aid

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force on 1 April 2013 and fundamentally change the landscape of legal aid in family law cases. Prior to the introduction of LASPO, legal aid was available across a broad range of family law cases. The Act, which was explicitly introduced with the goal of cost cutting, removed legal aid for private family law cases, including divorce and child arrangements, with limited exceptions such as in cases involving domestic abuse. Legal aid remains in place for public family law cases involving local authorities, such as those involving care and supervision orders.

The impact of LASPO was immediate and far reaching. According to Law Society statistics, in 2012/2013, 204,247 new family law legal aid cases began. This dropped to 43,104 one year later, following the introduction of LASPO, and had fallen further to 29,452 by 2020/21. The Law Society reports that the number of advice agencies and law centres carrying out legal aid work has dropped by 59% since 2012, leading to the existence of so-called ‘legal aid deserts’ with serious challenges accessing legal aid in some areas, even for those who qualify for it.

For many of those who no longer qualify for legal aid post-LASPO, but are unable to fund legal advice themselves, the remaining alternative is to participate in family law proceedings on an unrepresented basis, as a litigant in person. Since the introduction of LASPO, the family courts have been inundated with litigants in person. Ministry of Justice statistics released on 26 September 2024 indicate that, from April to June 2024, the proportion of private family law cases where neither party had legal representation was 40%. Both parties were legally represented in only 19% of cases, a vast drop from 41% in January to March 2013.

In 2018, an Equality and Human Rights Commission report into ‘The impact of LASPO on routes to justice’ found that, as a result of the current legal aid position, ‘many participants were forced to handle cases alone or felt they had no choice but to take no action. This suggests that necessary litigation cannot be pursued by some people under the current legal aid arrangements. For those participants who handled their cases alone and represented themselves, the complexity of family law processes prevented them from presenting their cases effectively. This is likely in some cases to have resulted in outcomes that are inappropriate or unjust, including where children are involved’.

Although it goes without saying that family lawyers are not directly involved in cases where both parties are litigants in person, all will have nonetheless seen the impact that LASPO and wider funding cuts have had on the family court system, which is widely acknowledged to be in crisis. All family lawyers will also have had cases involving a litigant in person and so will have had some experience of the additional challenges of navigating such cases.

The challenges involving litigants in person

For litigants in person themselves, the court system is opaque and daunting, involving complex procedural rules, lengthy forms to be completed and copious acronyms. Post-Covid-19, the family courts have continued to schedule the majority of hearings online using CVP video link facilities, rather than requiring attendance in person. Although this can create a welcome cost saving for litigants who would otherwise need to pay for travel to court, for many the video link system can feel challenging to navigate, and facing their former partner on screen can feel emotionally confronting, particularly for those who have experienced abusive relationships. Court funding issues also mean it can be hugely difficult to make enquiries with the court. It is common for emails to go unacknowledged for months and to spend hours on hold trying to get through to the centralised telephone line.

For legal practitioners, these delays in the family court system are a constant challenge. As a result, those clients who can afford to do so are encouraged to divert their cases away from court to private Financial Dispute Resolution (FDR), hearings, arbitration or mediation. This allows them to avoid the uncertainty of a court system in which hearings can sometimes be cancelled at the last minute due to a lack of judicial availability (with resultant cost consequences for those who have already incurred barrister’s fees), or may otherwise be hugely delayed. Litigants in person rarely have the same forewarnings as to the pressures on the family court system, the impact that this may have on their case, or the alternatives available.

The burden of supporting litigants in person during a hearing without legal representatives falls significantly on the judge (or magistrates with a legal adviser), who will be required to explain procedural and legal points to the parties, manage submissions which may often have limited relevance to the specific matters before the court, and navigate reading into a case without a court bundle available. Inevitably, such hearings are likely to take longer than they would were the parties legally represented, with a resultant impact on the court’s overall workload. The increase in hearings taking place via video link has also resulted in some litigants approaching the hearing with less formality, creating further difficulties for judges in managing hearings. This issue is not unique to litigants in person, but is exacerbated where solicitors and barristers are not present to brief their client on the court’s expectations.

There are also particular difficulties in hearings in which one party has made allegations of domestic abuse against the other and oral evidence is required. Section 65 of the Domestic Abuse Act 2021 inserted a new Part 4B into the Matrimonial and Family Proceedings Act 1984, which introduced a prohibition on an alleged perpetrator of domestic violence questioning their alleged victim directly (or vice versa). The new provisions require the court to consider whether there is a satisfactory alternative means for the witness to be cross-examined or for evidence to be obtained that the witness might otherwise have given under cross-examination in the proceedings. Failing that, the Act provides for Qualified Legal Representatives (QLRs) to be appointed to conduct cross-examination on behalf of unrepresented parties in such circumstances. A QLR, who must be a qualified barrister, solicitor, or CILEX fellow, is publicly funded and is brought in solely to conduct the cross-examination. Their involvement ends following the cross-examination, and their appointment is by the court, rather than the party.

Involving a QLR is, in principle, a means of ameliorating one of the most challenging aspects of cases involving litigants in person, but in practice there can be significant difficulties in doing so. In the recent case of Re Z (Prohibition on cross-examination: no QLR) [2024] EWFC 22, the President of the Family Division, Sir Andrew McFarlane, provided guidance on the approach the family court should adopt when no QLR can be found, despite a direction having been made for their appointment. In circumstances where there is limited availability of QLRs, it will unfortunately remain common for judges to deal with matters in their place.

Where one party is a litigant in person, but the other is represented, some of these difficulties can be somewhat mitigated by the placing of additional obligations on the represented party’s solicitor. For example, the usual requirement that the applicant prepares the court bundle is reversed in cases where the applicant is a litigant in person but the respondent is represented, as per paragraph 3.1 of Practice Direction 27A. Inevitably, the represented party will also incur additional costs as a result of their solicitor explaining procedural or legal points to the litigant in person, which can increase frustration for their client. Despite solicitors having a clear obligation under the Solicitors Regulation Authority’s Code of Conduct not to take unfair advantage of an unrepresented party, understandably, litigants in person can sometimes be distrustful of any guidance or explanations given by the other party’s solicitor, which can increase the overall tension in a case.

A further risk to litigants in person facing a legally represented spouse is the potential for a costs order to be made against them, requiring them to meet the other party’s costs. Such orders are now unusual in private family law cases, but the courts do still have the power to make a costs order where it is deemed appropriate.

The impact

The current legal aid and family court landscape leaves those who cannot afford to fund their own legal representation in an invidious situation. Many report simply abandoning proceedings or choosing not to make an application because of the difficulties navigating the system. Charities such as the brilliant Support Through Court work hard to support unrepresented individuals, but funding remains a huge issue. The requirement to attend a Mediation Information and Assessment Meeting (MIAM) prior to issuing an application (save where certain exceptions apply) and the wider obligations to explore non-court dispute resolution options mean litigants in person should now be apprised of the available alternatives to court proceedings, but these may not feel accessible or appropriate, particularly for those concerned about imbalances of power.

Litigants in person who cannot afford even preliminary legal advice may also be doubly disadvantaged by a lack of awareness of the potential funding options available, such the option of applying for the other party to fund their legal fees in appropriate circumstances. Likewise, many are unaware of the middle ground option of funding a Direct Access barrister to accompany them to court, even where they cannot afford to involve a solicitor for ongoing advice. A further funding option which some litigants in person are unaware of is the Family Mediation Voucher Scheme, which contributes £500 towards mediation sessions with a view to resolving family law disputes outside of court.

The Law Society has consistently called for a review of the legal aid system, emphasising the pressures placed on the family court system. In April 2024, Law Society President Nick Emmerson said, “The rise in litigants in person is creating further pressure on a system already in crisis. Further action is needed to make our family law justice system fit for purpose.” It is hoped that the many calls to action made in recent years will soon be heeded, so that all those dealing with the complexities and stress of family law proceedings are able to obtain the support they deserve. In the absence of significant reforms, the future consequences for those participating in a family court system that is already on its knees are likely to be truly dire.