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Family Law

The leading authority on all aspects of family law

09 JUL 2014

View from the Foot of the Tower: The Cobra Effect

View from the Foot of the Tower: The Cobra Effect
The Cobra Effect is not that phenomenon where you find yourself ordering more poppadoms than you can eat and being full by the time your main course arrives. It instead refers to an attempt by someone (usually the State) to solve a problem only to find later that the solution makes the problem far worse.

The story goes that when the British were heavily involved in India, they became troubled about the proliferation of cobras and the number of people who were being bitten and injured by them. They introduced a policy to tackle this – they put a bounty on cobra’s heads (or more accurately on their tails) and paid Indian people a sum of money for every dead cobra they could bring to the British.

Originally, this worked, with people killing cobras for the bounty and thinning their numbers. However, human nature and capitalism being what it is, soon some enterprising individuals realised that if you kept cobras and bred them, you could have a continual source of income from the British, by breeding lots of cobras and handing one in every time you wanted some cash. That, of course, led to an INCREASE in the cobra population, quite the reverse of what was intended. So the British stopped paying the reward. Whereupon the cobra farmers, having been robbed of their source of income, and let the cobras into the wild to cut their losses rather than pay for upkeep. Thus, the policy intention to reduce the number of cobras ended up considerably increasing them, and costing the British money for all those bounties and all the administration in the meantime.

We can see from the Ministry of Justice statistics, that the first year of LASPO has had a very stark impact.

A fall of 60% in the number of family law cases, of 1,520 applications for s10 LASPO exceptional funding only 69 were granted (of which meagre amount 53 were for inquests, and most chilling of all the number of civil legal aid providers has halved since 2008.

The last time that such a major restructure of legal aid happened was when personal injury cases began to be funded on a ‘no-win no-fee’ basis, from s 58 of the Courts and Legal Services Act 1990. That change undoubtedly shipped a lot of costs from the legal aid budget, and arguably made personal injury cases accessible to a wider section of the public (who had been too well off for legal aid but not sufficiently wealthy to pay at private rates).

But of course, the Cobra Effect of the no-win no-fee revolution was the advent of claim-farming firms, and one only has to turn on the television to find that there’s a bombardment of advertisements offering the world for injuries (and invariably showing someone with no apparent ill-effects celebrating with their huge compensation cheque). As people became able to sue for negligence and personal injury, and the defendants of those personal injury claims being under pressure to settle to avoid the success fees and costs, those costs became passed on to the defendants in greater insurance premiums. Those defendants were often public bodies – hospitals, schools, local authorities, swimming pools – and the costs of the greater insurance premiums were thus met from the public purse. We don’t know whether the money the Government saved on legal aid represents value for money when offset against the greater costs in compensation and insurance being paid by other limbs of the State.

As well as the financial cost, there’s the social one – in order to avoid litigation, public bodies became more risk averse, more anxious, peppered public spaces with warning notices and policies – and the policies became about protecting the organisation from risk, even at the expense of the service they were supposed to be providing (the classic example being the decision by many public swimming baths to insist that each child had to be accompanied by one adult, making it impossible for many children to learn to swim - see ‘In the Interests of Safety’ by Tracey Brown and Michael Hanlon for the full story). It is too early to tell what the full social implications of growing up in a society where any accident is someone else’s fault, where an organisation has to avoid risk at all costs. 
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That reform is hardly an unrivalled success story – unless you are a claim-farming firm, or one of the actors providing voiceovers for their adverts; but there was very little listening being done when LASPO was being conceived.

We don’t know if there will be a Cobra Effect from LASPO, but early anecdotal evidence suggests there might be – if you’ve ever completed one of the new private law case management orders and imagined litigants in person doing that for themselves, or seen your local judiciary the day after a private law case, or heard comments that this isn’t what they came into the law to do. That’s within the Court, but what of the cases that now don’t go to Court, because there is no legal advice to explain your rights or represent them for you? What is the cost for a generation of children who had contact that a court might have deemed unsafe, or who were denied contact with a parent because there was nobody advocating for it (or even managing the expectations of a parent hostile to contact and getting them to take the child’s perspective)? What is the cost to society of parents taking matters into their own hands – sorting out contact by might, or by shouting, or by wearing someone down? What is the cost to the State of additional police call-outs, more domestic violence incidents? And more to the point, is anyone in charge actually interested in finding out?

We are already seeing some pressure on s10 LASPO. There’s clearly no political will from any party to roll back these cuts, but the tradeoff for the swingeing cuts was the protection in s10 LASPO for human rights.

The President fired a warning shot in Q v Q [2014] EWFC 7, [2014] 2 FLR (forthcoming)  that in a case where the court felt a person’s Art 6 or Art 8 rights would be breached if they had to contest a case unrepresented and wanted to be represented, either s 10 LASPO would need to be properly reactive to this or the legal fees would have to come out of HMCTS budgets. We await the outcome of what are presumably strained responses from both the Legal Aid Agency and Ministry of Justice.

And further still, in the civil case of Guadanaviciene v Legal Aid Agency 2014 the Court ruled that the Legal Aid Agency had been applying too high a test to the s 10 LASPO applications, in effect interpreting ‘exceptional’ as meaning rare or infrequent, rather than that there were cases in a particular category that would not qualify and cases that fell outside that category that would. The Court in Guadanaviciene said that it was wrong for the Legal Aid Agency to use as their test the question that caseworkers are directed to ask is 'will withholding of legal aid make assertion of the claim practically impossible or lead to an obvious unfairness in the proceedings?'

It is understood that Guadanaviciene is being appealed, and the outcome of that will be interesting. It is also understood that there are other family law challenges to the exercise of s10 LASPO, which Parliament put in place as a check and balance to these cuts, to ensure that in cases where lack of representation would result in procedural Art 6 unfairness or a loss of other human rights that funding would be found.

We have to keep our eye out for cobras.
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