Recognising solicitors’ vital role in family justice

As a long standing advocate of the benefits of collecting information about the functioning of our Family Justice System in order to achieve what in Australia is referred to as not just Value For Money but Social Return On Investment, I have become increasingly aware of the havoc caused by LASPO since 2013 (see After the Act Maclean and Eekelaar 2019 Bloomsbury). 

But at last there are increasingly visible signs of a more positive approach to helping those dealing with divorce related financial and parenting arrangements through legal information and legal support, if not full legal aid. It has taken time for Governments to recognise the very positive key role of solicitors in helping parties to reach agreement, thereby avoiding the need for resort to court. This was not the case twenty five years ago. 

When I joined the Ministry of Justice as an Academic Adviser during the making of the Child Support Act I was surprised to find a widespread assumption that lawyers were “stirring up trouble” in order to increase their income from the legal aid budget. I had just spent 6 months observing legal aid family solicitors at work, cooperating, and seeking negotiation to settlement (see Family Lawyers, with Eekelaar and Beinart, Hart, 2000). They took pride in avoiding the need to go to court. The legal aid bill had increased not because of the litigious conduct of solicitors but simply because the divorce rate had doubled between 1960 (2.5%) and 1980 (5.5%).

Governments in a number of jurisdictions have long been concerned to control the cost of court based decision making in these matters (see in particular reports from the Australian Institute of Family Studies, AIFS). In the UK we saw attempts at making legal advice available online. But this approach turned out to be more difficult and less effective than hoped. 

But NCDR, non court dispute resolution, particularly mediation, began to be seen as an attractive option. Originally a voluntary activity, it is now generally charged, currently at an average fee of about £170 per person per hour. Meanwhile empirical research from AIFS began to take a broader focus and found, for example, that the parents in dispute who were choosing to go to court were more likely to have a mental illness than non court users. 

But when mediation was added to legal support in property disputes in a pilot scheme, the outcome was much improved, more earlier out of court settlement.

Here the take up of family mediation has remained low. The government set up a consultation in 2022 to look at the possibility of making use mandatory for those wishing to go to court. But despite the recent introduction of successful mandatory mediation in some commercial matters, this proposal was not welcomed, and has not been pursued. 

What we urgently need now is a rigorous evaluation of the SROI of legal information, legal advice and legal support in family matters, particularly where children are concerned, in both public and private law cases if we are to comply with Section 1 of the Children Act 1989 (see Lawyers and Mediators, Maclean and Eekelaar 2016, Hart Bloomsbury London).

The covid emergency stimulated new thinking about more flexible and perhaps more simple ways of arranging court business, including the use of online technology. 

Solicitors in particular developed new ways of working around the courts (see Maclean and George 2021 Family Practice during Covid, Family Law 51). 

In addition the Ministry of Justice has been piloting a number of ways of organising legal support, if not returning to full legal aid, including the colocation of legal information in medical settings. 

But at every stage in every setting solicitors still play the key role in providing relevant legal expertise in an accessible way to the anxious and the angry men and women seeking a pathway for themselves and their children through apparently insoluble problems following separation.

It is time not only to recognise the role of solicitors but to enable them to do their job!