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

Abstract

This article seeks to critically examine the implications that the new eligibility requirements 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.