These problems were exacerbated by the austerity measures first put in place by the coalition government more than a decade ago. In 2010-11, the combined spending for criminal and civil legal aid was £2.57bn - a figure which precipitated a cost-saving review that was intended to reduce annual expenditure by £350m. But by 2017-18, the annual legal aid budget had fallen to £1.63bn - £940m lower than it had been in 2010-11.
The key legislative driver to cut legal aid spending arrived in 2012 with the passing of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO). Wide-ranging in nature, its specific focus on legal aid was to narrow the scope and financial eligibility criteria. The Act removed financial support for most cases involving housing, welfare, medical negligence, employment, debt and immigration.
Critically, financial support was also removed for most private family law cases, except for situations involving domestic abuse allegations, where a child who is the subject of the proceedings is at the risk of harm from another party.
The number of people accessing legal aid fell by 82 per cent in an eight-year period post 2010-11, while in family matters it shrank by a remarkable 88 per cent. By the end of 2018, the cuts to legal aid led to the family courts becoming swamped with unrepresented litigants, despite the expectation that many people would be discouraged from continuing with proceedings.
In February 2019, the government published its long-awaited post-implementation review (PIR) review of LASPO, which was intended to be a far-reaching examination of the effect on access to justice of the substantial cuts to legal aid, together with an action plan of the way ahead.
The PIR acknowledged that there was a significant gap between LASPO’s original intention and its practical impact in family law: the hope that, by cutting off their access to lawyers, conflicted parents would be dissuaded from litigating and diverted instead towards mediation.
In short, it did not work as planned. Rather than mediating, divorcing couples chose to represent themselves instead, leading to a dramatic increase in litigants in person (LiPs) appearing before the courts. By 2018, representation has dwindled to such a degree that only 20 per cent of family court cases involved parties who both had legal representation; in 35 per cent of these cases neither party had a lawyer.
