When Exceptional is the Rule: Mental Health, Family Problems and the Reform of Legal Aid in England and Wales

Abstract

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 will from April 2013 remove legal aid from many areas of private family law, with many vulnerable individuals expected to represent themselves. However, funding will be available via the Act’s ‘exceptional funding’ regime on a case by case basis where provision of legal aid is necessary to avoid what would otherwise be a breach (or risk of a breach) of the person’s rights under the ECHR. Article 6 ECHR protects a right to legal aid in civil proceedings where necessary to ensure ‘practical and effective’ access to court. One factor that might inhibit individuals’ ability to represent themselves ‘properly and satisfactorily’ and so impede ‘practical and effective’ access is mental health. This paper examines data from the Civil and Social Justice Survey (CSJS) which casts light on the prevalence of mental health problems amongst adults with family law problems and so on the potential extent of eligibility for exceptional funding. We find that the prevalence of mental health problems in this population is rather higher than the government’s projections of take-up of exceptional funding might suggest, raising the potential for a somewhat higher than anticipated proportion of family disputants seeking exceptional funding on this basis.

Keywords: Mental health, Family Law, Legal Aid, Access to justice