Family law: legal advice and assistance, but not as we know it?

As an articled clerk in the late 1980s the middle-sized firm that I worked for had no hesitation in offering civil legal aid, otherwise known as public funding. The legal aid scheme covered everything from two hours’ basic advice and assistance on virtually any matter of English law to full-blown certificated representation. The latter enabled, for example, my then firm to represent victims and their families in disaster litigation, in which the practice specialised, with the likes of the 1985 Bradford City stadium fire disaster.

Eligibility for legal aid originally included 80 per cent of the population. In 1973, the figure was 40 per cent, but by 1979 it had increased to 79 per cent. It retained this level in the early 1980s, before falling during the rest of that decade.

Legal advice and assistance were delivered under the green form scheme from its inception in 1973 and, until 1988, was administered by the Law Society. In the case of family law, if the client instructed you to draft their petition, the limit of cover was three hours’ work.

Working as a trainee solicitor, I remember being on the frontline of green form advice giving for anyone dropping into the office seeking legal redress in any number of types of matters.

Now, the government is talking about introducing early legal advice once again. This is included in its response to the March 2023 consultation, ‘Private Family Law Early Resolution Consultation’.

The consultation

This initial consultation proposed, with certain exceptions, mandatory mediation for separating couples. I wrote an opinion piece for the Solicitors Journal in July last year on the consultation, entitled ‘Family Mediation: should it be voluntary or not?’ There, like the Law Society and the Resolution, I opposed the government’s proposal of mandatory family mediation and called for early legal advice to be offered which might signpost more people to such a form of so-called ‘alternative’ dispute resolution, mediation. This given that, after 2014, referrals to mediation dropped by 60 per cent owing to legal aid cutbacks. It seems that the government has been persuaded by the responses to its consultation.

The fact that the government has announced a new pilot on legal advice has come as a surprise to some but what has it actually said?

‘Central […] is a new legal advice pilot, which will test how effective early legal advice is in helping parents to reach an agreement at an earlier stage’, it sets out. The government response goes on to explain that this new pilot on legal advice is specifically designed for parents/carers facing challenges when agreeing their child arrangements. This pilot will apparently seek to demonstrate the benefits of high-quality legal advice for families looking to resolve their issues through the courts and, where court is deemed necessary, better prepare them for the court process.

But what does the announcement really mean?

The government has caused some confusion by calling the proposed pilot ‘legal advice’ rather than legal aid. Karen Dovaston, Chair of the Law Society’s Family Law Committee said, “We don’t really know what that means. With legal aid there are certain connotations. There is a relationship between criminal and civil legal aid and funding implications. Calling it early legal advice means they can create a new regime for means testing”. Dovaston has urged the government “to listen to the people who are going to be using the service” when developing the initiative. Notably, a government review of civil legal aid is due to report this year. This may cast a little more light on what the government intends.

So much for the ‘what’ but what about the ‘when’?

The government says it plans to launch the pilot in specific regions in England and Wales by summer 2024. Its goal is to ‘collaborate closely with stakeholders in the legal and advice sectors to design a pilot that effectively assists participating families in resolving their disputes and enables us to collect crucial evidence on the role of legal advice in dispute resolution’.

In contrast with over 30 years ago, a very few firms today offer civil legal aid/public funding. It remains to be seen how many practices will take up any new family law legal advice pilot.

Tony Roe is a family law partner and arbitrator at Dexter Montague LLP
dextermontague.co.uk