Relational Vulnerability by Ellen Gordon-Bouvier

Author:Ellen Gordon-Bouvier
Language: eng
Format: epub
ISBN: 9783030613587
Publisher: Springer International Publishing

The Withdrawal of Access to Justice

The third illustration of the autonomy turn is the steady reduction of state-supported means of access to justice to divorcing couples, which have been replaced with an expectation on parties to reach agreement without having recourse to the courts. The Legal Aid Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) involved a large-scale withdrawal of public funding for the majority of private family cases in England and Wales. Other than in cases that are considered to be ‘exceptional’, Legal Aid is now only available where the applicant can supply documentary evidence that there has been a recent history of domestic abuse within the relationship (Schedule 1, LASPO 2012). As Barlow et al.’s (2017) study of family dispute resolution found, the provision of state-funded legal representation has been replaced with the promotion of various forms of out-of-court dispute resolution, including mediation. The researchers noted that alternative dispute resolution is promoted as a universal and obvious good—a preferable option for attending court (Barlow et al. 2017). As Diduck (2014, p. 97) has argued, the state has attempted to give autonomy-based measures a “friendly face” by emphasising its respect for party agency and individual control over the legal process. By contrast, those who remain entitled to assistance under the new regime are frequently depicted as helpless victims, who are lacking in such agency and control (Brown 2012, cited in Diduck [2014]).

The post-LASPO legal landscape has substantially increased the promotion of non-intervention policies, to such an extent that the state can be described as largely unconcerned not only during the marriage, but also when it breaks down. Reliance on private ordering and alternative dispute resolution allows the state to provide only the bare minimum in terms of upholding and endorsing privately negotiated settlements (Fineman 2008). The expectation of personal responsibility for resolving disputes also reinforces the norms that characterise the hypothetical invulnerable legal subject. Autonomy and rationality are viewed as the default, with a clear expectation on parties to be able to resolve their own disputes. The state’s retention of Legal Aid for the narrow category of relationships involving domestic violence demonstrates that assistance is only available if the claimant can fit into an exclusionary category of ‘deserving victim’. As Mant and Wallbank (2017, p. 630) argue, “the bright-line rule approach to defining vulnerability is in stark contrast to the generally flexible and discretionary way in which family law has traditionally been governed”. Such deservingness, they argue, is measured through stereotypical conceptions of domestic abuse (Mant and Wallbank 2017). Thus, the autonomy turn has reinforced that the state’s conception of vulnerability as an exceptional, rather than universal, condition, for which the applicant must supply substantial evidence to demonstrate belonging. Those who fail to meet the threshold for vulnerability are regarded as ‘invulnerable’ in the sense that they are not thought to be in need of access to the court to resolve their disputes.

Following LASPO, the state promotes a strong message that individuals need to bear personal responsibility for the adverse circumstances in which they find themselves.

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