Family courts: self-representation hinders justice say magistrates

Legal aid cuts ‘risks injustice to children’ (Image: Shutterstock)

New research by the Bureau of Investigative Journalism reveals magistrates are seriously concerned about the rising number of people representing themselves in family courts, following cuts to legal aid in the area.

Changes to legal aid provision, brought in in April 2013, means that many people are no longer eligible for financial support in many family court proceedings. This has led to an increase in the number of people representing themselves at hearings, with the number of self-represented parties in child-related cases shooting up by 40% between December 2012 and December 2013. The government has previously claimed that self-representation is no barrier to justice, but now magistrates have logged their worries that the justice system is suffering.

The Bureau, in partnership with the Magistrates’ Association, surveyed a sample group of 461 magistrates sitting in a variety of courts across the country.

In relation to private family law, which mainly involves resolving issues concerning children where parents have separated, we found:

• 46% of the parties seen by magistrates in the private family courts, were representing themselves.
• The majority (97%) of magistrates that saw a party representing themselves, believe self-representation has a negative impact on the court’s work
• 62% of magistrates said litigants in person has a negative impact on the court’s work most or all of the time
• Magistrates voiced concerns about time delays to hearings, a mis-balance in legal battles and the possibility that justice is not being done

Respondents to the survey also expressed their views on the impact of self-representation in private family courts.

One respondent replying to the survey noted: ‘In family [courts], if one side is represented and the other not, it makes it very difficult to have a fair hearing as Litigants in Person find it difficult to cross-examine and don’t understand the process’.

Another magistrate said: ‘In private family court work there are an increasing number of litigants in person. Often one party may have a solicitor who will end up acting as a mediator.’

Many magistrates noted the impact of litigants in person on the time it took for hearings to proceed, while others questioned whether people representing themselves could mean justice is not being done.

One magistrate asked: ‘Do the litigants get justice if they can’t afford to pay for legal support?’  Another said: ‘I feel there is often a miscarriage of justice. I know we and our legal adviser do our best but time is not on our side. An impossible two tier system has been created, those that have and those that don’t.’

Another said: ‘Justice is limited to those who can afford it.’

Steve Matthews, Chair of the Magistrates’ Association’s Family Courts Committee explained: ‘Savings in legal aid costs on family cases disadvantages those people unable to afford lawyers and risks injustice for children.

‘It is evident to every family magistrate that the rise in litigants in person in private law children cases is having a profound effect on the effectiveness of court operations. From recent evidence to the Justice Select Committee it is clear that this is echoed by all other family judges,’ Matthews added.  

The Children and Family Act, which came into force in April 2014 was designed to streamline the process, creating a single family court and promoting mediation as first step before formal hearings.

It may be too soon to see the impact this will have but many are dubious that the changes will have any affect. Marc LoPatin, from Lawyersupportedmediation.com told the Bureau that often family solicitors are a vital gateway for referring clients to mediation. Without legal aid the parties are never advised by a solicitor to go down the mediation route.

‘Anyone who thinks that these changes are a way to empty the family courts is mistaken,’ said LoPatin.

There are some indications that the issues of the family courts are now filtering through to the Court of Appeal.

Lady Justice Black, a top judge at the Court of Appeal, recently warned that the rise in the number of people that she had seen representing themselves in person during appeals was an ‘increasing problem’ and was making work in the court ‘infinitely more difficult’. Her warning came as part of a ruling on an appeal case where a woman was representing herself in an appeal of a county court judge’s decision to place her four children into care.

She went on to add: ‘Everyone involved in public and private law children cases is attempting to achieve the best possible result for the children whose welfare is at the heart of the proceedings and, without legal representatives for the parties, that task is infinitely more difficult.’

The Judicial Executive Board, which represents the judiciary,  has now lodged written evidence with the Justice Select committee’s ongoing inquiry into the legal aid cuts. Much like the survey of magistrates, the Judicial Executive Board noted that in their experience ‘where legal aid has been removed and individuals have become represented the adverse impact upon courts’ administration and efficiency has therefore been considerable. The apparent saving of cost by a reduction in the legal aid budget needs to be viewed in context: often it simply leads to increased cost elsewhere in the court system as, for example, anecdotally cases take longer.’

Bill Waddington chair of the Criminal Law Solicitors Association said: ‘Family courts are an absolute disgrace. People are representing themselves so cases that should take an hour take a day.’

A Ministry of Justice spokesperson said: ‘There have always been a significant number of people representing themselves in court — this was the situation in around half of all private law cases in 2012. Latest figures show family court performance is being maintained.

‘Not only do we have one of the most expensive legal aid systems in the world but we had reached a situation where court was the default option no matter whether it was best suited to resolve the issue before it.

‘Legal aid remains available where people most need legal help and we are putting more money into mediation as it is less stressful, less expensive and more successful for people trying to resolve disputes about children or money.

‘We listened closely to concerns raised about family justice’s legal aid reform and made  further changes in response, like making it easier for people to get the evidence they need to make their legal aid claim.’

Going elsewhere for help

With the changes in legal aid meaning that advice from solicitors is no longer an option for many, people are turning to other means to deal with family crises.

Analysis of Citizens Advice Bureau data reveals that advice on discrimination in the realm of Relationships and Family increased by 43% in the year 2013-2014 compared to the year before.

Meanwhile requests for advice on domestic violence rose 9%.

Legal aid is still available for cases involving domestic violence, however to qualify for legal aid certain documentation must be obtained, such as police records of an attack.

Analysis of government figures, by the Bureau, reveals that the number of cases of domestic violence appearing before the courts, where neither party is represented has gone up 2% between 2011 and 2013. That is equivalent to 403 extra cases where both parties are unrepresented.

In one case seen by the Citizens Advice Bureau, a woman who had been abused by her former partner was looking to get official supervision for any contact between him and her child. When she came to register the abuse with the police they took around 40 days to respond each time. Because of these delays she was unable to access legal aid and ended up attending court on her own because she couldn’t afford the representation.

The Chief Executive of Citizens Advice, Gillian Guy, said: ‘Unless police officers act quickly in providing official reports to victims, people will find themselves unable to access legal aid and fair treatment under the law.

‘One of the key justifications for legal aid cuts made by the Government was that victims of domestic violence would still have access to financial support. Citizens Advice has received some reports from victims of abuse that the police response took too long and meant that they could not supply the evidence they needed to receive legal aid. One case of someone who reports domestic violence and finds the police a barrier to justice is one case too many.’

Research from Welsh Women’s Aid and the Rights of Women group looked at domestic violence cases, and found that in 43% of the cases studied the applicant did not have the prescribed forms of evidence to access legal aid.

The same research found that 47% of people ended up taking no action on their case because they were not able to apply for legal aid.

Other support organisations are also registering an increase in demand for advice.

Fiona Weir is chief executive of the charity Gingerbread, a group that provides support and advice for single parents. Weir says the charity has seen a marked increase in the number of enquiries they received about legal matters. 

‘The cuts to legal aid have had a significant impact on single parent families. We have had hundreds of calls from parents who cannot get legal aid and may now have to represent themselves in court,’ she said.

‘We are particularly concerned that the limitations on legal aid for domestic violence victims are putting families at risk. One caller to our helpline could not get legal aid because her violent ex-partner was never charged or cautioned by police, only arrested; another because the domestic violence occurred more than two years ago, even though her ex remained a threat,’ Weir added.

Since September 2013 Gingerbread’s helpline has taken calls from 330 single parents who are ineligible for legal-aided representation and may have to attend court as a litigant in person.

The Coram Children Legal Centre saw the number of calls to their Legal Advice Help line double, from 23,017 unique callers in 2012-2013 to 40,192 in 2013-14.

Jerry Karlin, Chair of Families Need Fathers, told the Bureau: “Increasing numbers of parents over the past year have been accessing our support services for assistance in representing themselves in court. It is often the only option left available to them to stand a chance of maintaining a relationship with their children.

‘Representing yourself in court can be incredibly challenging for parents caught up in emotional, high conflict separations, and the stress of these situations means that not all parents are able to present their case effectively. If these parents have trouble speaking in public, or speak English as a second language, their difficulties can be compounded. My fear is that these changes are preventing parents from accessing the family justice system when their cases really need court intervention to be resolved, and that the best interests of children in these families are not being met,’ he added.

Bids for Exceptional Case Funding

Part of the bill that introduced the changes to Legal Aid in 2012, also created the Exceptional Case Fund, designed to hear applications for those who might still be eligible for financial support even if they no longer fit the legal aid criteria.

Analysis of MoJ statistics reveals that between 1 April 2013 to 31 March 2014 there 1,519 requests for exceptional funding.  Over half of those (828) applications were for funding in family law cases.

However, few have benefit from this recourse. Of the 828 applications made on family law issues, less than 1% were granted. Only 8 cases in total received exceptional case legal aid funding.  Nearly all, 96% were refused or rejected. 70% were refused after being assessed and it was decided they were not eligible for the fund. 26% were rejected after it was found either the applicant could get legal aid or that not enough information had been provided in the application to make a determination.

1.7% of all cases had been applied for by an individual, the rest were put in with help from a Legal Aid Provider.

A fifth of those put in my individuals were rejected because the application was incomplete. Just 1% of those put in by Legal Aid Providers failed for the same reason.