By Sanchia Berg
Last month the government announced it was planning to remove most Legal Aid from private law cases in the Family Courts. These include matters of divorce, separation, custody and residence for children.
The aim of the change is to push more separating parents to solve their problems through mediation, which is a cheaper, more permanent and less fraught route.
But judges and lawyers within the Family Courts say that many cases will not be resolved that way. They believe difficult complex and entrenched cases will still come to court, but without lawyers.
Parents will represent themselves, as litigants in person. These cases usually take longer, putting extra pressure on a system already stretched.
Within the family courts there are many litigants in person even now. People who can’t agree with their exes, but who earn too much to qualify for Legal Aid, too little to employ a lawyer.
As journalists are now allowed to report Family Law cases – with restrictions to protect identities – I recently spent several days in the courts, trying to see how litigants in person actually fare.
I sat in one hearing where a mother was trying to get financial provision for her son from her ex partner.
Well educated – well prepared – she was nonetheless wrong-footed. At the door of the court, her ex partner’s barrister presented her with a new document.
Family Courts can prove a daunting prospects for litigants
This was a financial statement: a detailed breakdown of the father’s income and expenses. The mother saw this as key to her case, but she had no chance to read or analyse it before going into court.
Nor had she realised this was the final hearing. She had to cross examine her partner in the witness box — an uncomfortable experience. She hadn’t been able to investigate his finances, as a lawyer might have done. She had to ask him open questions like “is that your only bank account?”
The judge intervened several times – to explain a point, or to warn the mother her questions were too close to comment.
So, though scheduled for a morning, this hearing took all day. The judge did make provision for the child – but not as much as the mother had hoped. She felt that with a lawyer she’d have got more.
Sometimes litigants in person do get what they want. I spoke to a father who’d been seeking contact with his child: he’d been separated from the mother for several years. He had been in court six times to no avail: each time, the mother did not appear.
He’d consulted the Personal Support Unit, a charity which supports litigants in person and helps them navigate the processes and paperwork. They’d told him he could ask that a penal notice be attached to the next order, so the mother could face penalties if she didn’t turn up.
She did come to the next hearing, and he managed to see his child. His voice cracked as he described what happened next: he’d gone to his ex-wife’s house, accompanied by a Cafcass worker, a welfare officer employed by the court.
“My son ran down the stairs, came up to me, gave me a massive hug and said “I’ve waited so long for this dad!”
Both these cases were relatively straightforward. But complex ones, for instance where there’s an allegation of abuse, can be far tougher for litigants in person. I observed one case where a father wanted contact with his children, but he’d been accused of sexually assaulting one of them.
The court ordered a “fact finding” hearing – experts will be commissioned to investigate and report, so that the court can determine whether the allegation is true. Then it will consider the question of contact.
The judge ordered that the child in question be represented: it will have its own solicitor, publicly funded. In this case, both parents had lawyers.
If they didn’t they could find themselves in the tricky position of having to question an expert witness, a doctor for instance, about evidence that was terribly personal to them, while their child’s position was clearly defined and argued before the court.
Lawyers are particularly concerned about cases of alleged domestic violence. The government plans to provide Legal Aid for the alleged victims, but not the perpetrators.
Complex cases can see children, and parents all represented by lawyers
This “has huge implications for the administration of justice” according to Stephen Cobb QC, Chair of the Family Law Bar Association. It could result in a hearing where an alleged abuser had to represent themselves, while the alleged victim had lawyers.
That could mean the victim could find themselves in the witness box, cross examined by their abuser. That, in his view, “is only likely to reinforce the experience of abuse… which is what the courts and the government are trying to protect the victim from.”
I asked the Ministry of Justice to respond to specific points: the risk of greater delays in the family courts, the risk of unbalanced hearings in domestic violence cases. They gave me a general statement:
“Legal Aid will and must continue to be available to victims of domestic violence or child abuse. That is why the government has specifically chosen to protect these areas of legal aid scope, along with other cases where people’s life or liberty is at stake, or where they are at risk of serious physical harm.”
“In addition we propose a new exceptional funding scheme for excluded cases which international or domestic law will require to be funded by the taxpayer. This will, for example, ensure funding for extremely complex cases involving vulnerable people.”
“The taxpayer cannot continue to fund the current, extremely expensive, system of Legal Aid that encourages drawn-out and often acrimonious disputes between private individuals when there are other routes, such as mediation, which can produce better results for all concerned.”
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