The Mysterious Case of Disappearing Family Law and the Shrinking Vulnerable Subject

Published date01 October 2017
AuthorJulie Wallbank,Jess Mant
Date01 October 2017
Subject MatterArticles
The Mysterious Case
of Disappearing Family
Law and the Shrinking
Vulnerable Subject: The
Shifting Sands of Family
Law’s Jurisdiction
Jess Mant and Julie Wallbank
University of Leeds, UK
This article seeks to critically examine the implications that the new eligibility require-
ments for legal aid as implemented by the Legal Aid, Sentencing and Punishment of
Offenders Act 2012 are having on the ways in which private family law governs families. It
makes use of a theoretical lens drawn from the work of Valverde (2009, 2014a, 2014b)
on ‘jurisdiction’ to map the shift that has taken place within family law as a result of the
political boundary that the act has drawn between ‘vulnerable’ litigants eligible for legal
aid and the rest of families engaging with private family law, for whom self-sufficiency and
responsibility is encouraged and expected. It argues that in reserving legal aid for a
narrow group of vulnerable litigants, the formal scale of family law has shrunk, there
being at the same time an increased reliance on more informal sources of law such as
advice-based resources. This has led to a diversification of formal and informal scales of
governance which operate according to different ‘logics’, which impact negatively on
access to family justice for families from various backgrounds and circumstances. The
article concludes with a call for family law researchers to be mindful of the need to look
at both formal and more informal sources of family law in order to fully appreciate
developments within the jurisdiction, particularly pernicious ones, and to be able to
respond to them appropriately.
Corresponding author:
Julie Wallbank, Centre for Law and Social Justice School of Law, University of Leeds, Leeds, West Yorkshire
LS2 9JT, UK.
Social & Legal Studies
2017, Vol. 26(5) 629–648
ªThe Author(s) 2017
Reprints and permission:
DOI: 10.1177/0964663917691594
Access to justice, family law, jurisdiction, legal aid, Valverde, vulnerability
The aims of private family law have always been to promote fair outcomes and social
justice as well as ensure the welfare of family members during the often very stressful
and emotional process of relationship breakdown or family crisis. In order to achieve
these aims, family law has to date relied on a network of formal and informal processes,
systems, structures and relationships, traditionally allowing for a unique and discretion-
ary approach to assist the very diverse range of families and issues that require legal help.
For example, families have typically been able to seek help from both informal sources
such as advice-based networks, Internet sources and other information leaflets and more
formal solutions through the family court with full legal representation, if this is
required. However, the age of austerity has meant that there has been a marked shift
in the balance between the use of formal and informal processes and a scalar shift where
informal sources are used much more frequently than formal law. Additionally, where
courts (as part of the formal system) are relied upon, it is often without the benefit of
legal representation which is problematic in terms of the realistic attainment of justice.
Cuts to legal aid have meant that the majority of private family court cases are no longer
funded, due to the new eligibility criteria set out in schedule 1 to the Legal Aid, Senten-
cing and Punishment of Offenders Act (LASPO) 2012. This statute imposes a bright-line
rule approach, which reserves funded representation for the ‘most vulnerable’ individ-
uals – a category that has been premised on those who can objectively establish that
domestic violence is present in their private family law cases. Those falling outside the
rule – people bringing all kinds of private family law problems – will be funnelled away
from formal law and towards informal processes such as relying on Internet-based
sources of advice and other information packs. It will be argued that these sources are
wildly inappropriate for a vast number of people, as many are dealing with very difficult
personal circumstances, which are often compounded by factors such as socio-economic
disadvantage, abusive relationships, mental health issues and learning difficulties. Con-
sequently, many are left in an empty space between the formal and informal scales of
family law, within which they are unabl e to make use of either formal or informal
sources. Scrutinising the shift that has taken place is therefore imperative in order to
reflect upon the implications for families engaging with law, and upon family law as both
a jurisdiction and a discipline.
The bright-line rule approach to defini ng vulnerability is in stark contrast to the
generally flexible and discretionary way in wh ich family law has traditionally been
governed. It means that those unable to establish vulnerability according to the strict
criteria either feel forced to use informal sources which may be inappropriate for their
circumstances, such as the aforementioned sources of free and online advice, or to access
the formal scale of family law without help, for example, as a self-represented litigant in
the family court. Action groups, the advice sector, support organizations and academics
have already begun the vital work of looking at the effects of the legal aid cuts on formal
630 Social & Legal Studies 26(5)

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