One foot in the grave

Having celebrated its 60th anniversary only last year, the future for family legal aid has never looked less certain.

In 1949, when the Ruchcliffe Committee recommendations led to the Legal Aid and Legal Advice Act 1949, legal aid work was largely confined to solicitors in private practice with a focus on divorce and matrimonial proceedings. In 1949 it was recognised that leaving separating couples to muddle through on their own wasn't in the best interests of society as a whole. In 2010, the government's reviews of family justice and legal aid seem to be questioning whether there should be any funding at all for family cases which do not involve the welfare or protection of children.

Ever since the Carter report of 2006 paved the way for radical reforms of the way legal aid is administered, legal aid lawyers have been grappling with fixed fees, scope changes and the recent e-tendering process for delivering new contracts from October 2010.

Family legal aid lawyers have jumped through the various hoops and hurdles thrown their way. At the moment they are struggling with the outcomes of the recent civil bid round to determine contracts for delivering legal aid from October 2010. Although the final results of the competitive bid round on family legal aid are not yet known, it is clear that the picture for legal aid lawyers remains turbulent. With the Legal Services Commission (LSC) facing judicial review from the Law Society and others, new contracts now delayed until mid November, and a wholesale review of legal aid promised for later in the autumn, many practitioners are wondering where this leaves them, their firm and, most importantly, their clients.

There are worrying reports of advice 'deserts', where clients will have to travel long distances to reach a legal aid lawyer, and reports of losses of specialist practitioners on vital issues such as domestic violence and public law children work.

Looming threat

A recent survey of Resolution's legal aid members revealed that 90 per cent believe the latest moves pose a serious risk to access to justice. The survey also revealed that widespread redundancies are likely across the profession. The LSC has acknowledged that an unexpected result of the civil bid round was a marked reduction in the number of family firms '“ down from 4,500 in 2000, to 1,300 in 2010.

This number may rise slightly as a result of the appeals process and the LSC-led review, but it is clear that the family legal aid 'market' faces a major realignment. While there are signs already of movement in the market, with mergers, acquisitions and movement of staff, it remains to be seen whether the market can fully adjust quickly enough.

If the immediate picture for family legal aid looks unclear, its long-term future looks even more uncertain. The outcome of the legal aid review could bring drastic changes to the family law landscape taking certain areas of work outside of the scope of legal aid entirely. There has been speculation in the media that the government is considering other forms of financing for family legal aid on models similar to that operated for student loans. Whatever the pros and cons of alternative funding models, it is vital that all families continue to have access to justice.

Finding solutions

In the current economic climate it is difficult to argue against increased efficiency and better budgetary control, but is removing legal advice and help from separating families the best way forward? If it truly wants to encourage families to find solutions outside of court and reduce spending on family law issues the government would be better off heeding Resolution's call for substantive law reform to remove fault and blame from the divorce process.

Who knows, a reformed divorce law which avoids setting one family member against another might just help keep enough families out of court to ensure a 70th birthday for family legal aid.