A Failure of Implementation (Children and Families Act 2014 Committee Report)

Lord Bach Excerpts

Wednesday 6th September 2023 Grand Committee

[Lord Bach (Lab)]

My Lords, for me it was a real pleasure and honour to sit on this committee. I learned a huge amount, not least because I had effectively been away from the House for a period of five years, and this was my first committee back. However, the pleasure was largely because of the brilliant chairing of the noble Baroness, Lady Taylor of Enfield, who, with a diplomatic skill that many diplomats would envy, managed, with her charm and decisiveness, to get a, frankly, fairly disparate committee to quite easily agree to what is, in my view at least, an outstanding report which ought to guide the Government now and in the future. It is a massive report dealing with matters that, as we have just heard, touch directly on people’s lives and can take over their lives if we get it wrong.

I intend to speak about one issue alone, which is around family justice and how, in my view at least, the removal of legal aid for private law cases has, in itself and when taken with other steps that have been taken, had a pretty disastrous effect on our family law system, so that it now faces long queues, long waiting lists and too many litigants in person. It has made judges play roles they should not be playing: for example, administrative roles and roles to help out litigants when they are in person. That is not their job, and it has added greatly to the administrative burdens on family courts and those who administrate those courts.

The committee likely got just a little tired of hearing me bang on about this issue, but our unanimous recommendation in paragraph 141 is:

“We recommend that the Government urgently evaluate the impact of the removal of legal aid for most private family law cases, considering where reinstating legal aid could help improve the efficiency and quality of the family justice system”.


That view ought to carry some weight, coming as it does from an all-party committee that heard expert evidence and came to a collective view.

Paragraph 60 of the Government’s response is, to put it mildly, pretty disappointing. It just sets out that the Government reviewed the changes made by LASPO and published the post-implementation review in 2019, which, they say, is

“the most comprehensive assessment of the impact of LASPO on the civil and family legal aid system”.

I am sure it is, but that does not answer the point we made in our report.

The sad truth is that the Children and Families Act came into being under a pretty dark shadow from LASPO, which came into force less than a year before. LASPO changed the rules of the game. Before it, parties in private family law could obtain some legal aid or help to get that crucial early legal advice. After 1 February 2012, that came to a shuddering halt. There were supposed to be exceptions for domestic abuse, but the rules were so strict that that often did not happen. When the Children and Families Act came into force in March 2014, all the good intentions in that Act, and there are plenty of them, came up against this problem: the parties could no longer get that early piece of advice that might, and often did, sort out the issues so that court proceedings were unnecessary.

LASPO pressed hard for traditional mediation. Of course, the 2014 Act insisted on MIAMs, with only the claimant made a compulsory attendee. Mediation plummeted under LASPO, as the senior Ministry of Justice official admitted in his expert evidence. We heard evidence that many people are just not using MIAMs, even though they are bound to in law. As the report states at paragraph 130, the Government themselves stated that take-up had been “lower than anticipated”. Only 35% of those who were supposed to attend did so. There was much criticism of MIAMs during the course of our evidence.

There is nobody who does not support some attempt to settle cases without going to court, and various excellent methods are now employed as alternatives to traditional mediation, but what is urgently needed is a source of clear and impartial information on separation and some general legal advice. This is surely something that only the Government can ensure happens.

The almost certain outcome is that, by adopting such a scheme, public money would be saved and fewer cases would end up in court or in long lists never to be heard—or not to be heard for months. Also, the cases that went to court would have real issues for the court to rule on, rather than issues that really should not be anywhere near a court. The delays would be shortened and, as our report says in recommendation 25 in paragraph 141, the

“efficiency and quality of the family justice system”

would be improved.

There are examples galore in our report of expert witnesses making the points that I am trying to make so clumsily here today. For example, Dr Julie Doughty raised concern that the cuts to legal aid had just shifted costs to other parts of the court system. It is those working in the court service who have to deal with those cases; litigants in person understandably do not know how to conduct the case, taking more time than if they had some sort of advice. Professor Judith Masson said that

“there are cases going to court that lawyers would have headed off. With legal aid, a lawyer would have said, ‘No, it’s not worth taking this to court’ or ‘Try mediation’. That has been lost”.

There was no enthusiasm for and much opposition to the present system from our experts. However, the Government should perhaps take special note of the evidence of the present President of the Family Division and his predecessor—Sir Andrew McFarlane, who has already been referred to, and Sir James Munby. At paragraph 133, Lord Justice Munby said in evidence to us that

“one of the great disasters and one of the great mistakes by government in 2013 was identifying mediation as the non-court solution”.

He went on to say:

“Money properly spent at an early stage usually pays dividends later on”.


That is so obviously true, and it is why all of us are in favour of early intervention.

The Government have now concluded their consultation on the future of mediation and will no doubt announce their decision in due course. I urge them seriously to consider the committee’s proposals as the best way forward. There is a slightly depressing rumour going around that His Majesty’s Government may be rather attracted by what is called the compulsory mediation solution. Two recent articles, one in the Financial Times on 7 July and the other in the Independent on 14 July, point out the profession’s opposition to such a step. I do not want to embarrass him, as he is here today, but we are lucky in having in this House a Justice Minister who is open to debate and actually listens to suggestions. He met the chair and me shortly after the proceedings ended, which we were very grateful for. This week as well, we had a short conversation about these matters. He was an outstanding witness when he came before the committee. I have spoken to him already about this, and I am sure that he will follow Hansard after this debate.

In my view, the decision that the Government take on this matter is of considerable importance to the future of our whole family justice system. If they rely on traditional or compulsory mediation too much, the results will be very much as they have been in the past.