Justice Committee: Family courts struggle with surge in unrepresented litigants

head in handsThe seismic surge in the number of litigants in person has resulted in a clogging up of the family courts which were struggling to cope with an 19,000 increase in the last 12 months alone, the Justice Committee heard last week as they met to discuss the impact of the changes implemented by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The committee met with two sets of witnesses, the first comprising of Jane Robey of National Family Mediation, Susan Jacklin QC of the Family Law Bar Association and Dave Emmerson of Resolution’s legal aid committee.

Conservative Nick de Bois began proceedings by outlining the government’s stated aim of LASPO to bring renewed focus in to the onto the most vulnerable cases. The panel unanimously agreed that that aim had not been achieved. Dave Emmerson identified private family law as having suffered the most as a result of LASPO. Susan Jacklin QC echoed this, and stated that ‘litigants go to court without the benefit of having any advice whatsoever’ and, as a result, do not understand what the issues are and what the necessary evidence is. Jane Robey lamented the fact that LASPO has complicated legal matters which would otherwise be simple, owing to the constraints on legal funding.

Dave Emmerson told the MPs that there had been a 19,000 increase in the number of litigants in person this year which was ‘putting a great strain on the courts’. Susan Jacklin stressed that LASPO has caused a huge disruption in the family courts and that, while judges were trained to deal with litigants in person, it remained difficult to extract the relevant information particularly ‘when time is of the essence in a court case’. Additionally, if there were two litigants in person, the judge can end up acting advisor to both, which ‘dilutes the justice process’.

According to the panel, LASPO has created an imbalance, for litigants in person often struggle present their evidence in a ‘focused way’. As a result, favour was increasingly found with the represented client, irrespective of the merits. Jane Robey pointed to the dialogue between lawyers prior to going into court, which may lead to beneficial negotiation. Two litigants in person often ‘don’t know how to talk to each other’, and as such that benefit was lost. Robey argued that these issues resulted in unnecessary extensions of time and the consequence that ‘hearings take twice as long as they should’, because ‘sadly many litigants in person…simply don’t understand what they’re expected to do’.

Stocking plasters
The lawyers were asked whether more could be done to support litigants in person. Nicola Jones said that the pro bono schemes offered by the courts were merely ‘sticking plasters’, and their limitations shift the onus onto other free advice avenues, such as Citizens Advice Bureaus.

A major problem thrown up by the LASPO changes was that of exceptional case funding. Of the 1,468 applications for exceptional case funding made between April 2013 – March 2014, a mere 57 were granted. Between 1 April – 30 April 2014, 217 applications were made, of which 211 have already been assessed. Only 21 have been granted.

The panel was asked about the test for granting exceptional case funding and whether the guidance of the Lord Chancellor met the test laid down by LASPO. Dave Emmerson answered an emphatic ‘no’. He argued that the Ministry of Justice had ‘set the bar too high’. Nicola Jones remarked that a litigant required a ‘doctrine in law’ to complete the ‘cumbersome’ application form, such was its difficulty.

A third key LASPO problem as identified by the Justice Committee was that of the domestic violence gateway, which, according to Nicola Jones, was intended to protect the most vulnerable, but was failing to do so. ‘It’s incredibly, incredibly difficult to get through that gateway, and to gather the evidence satisfy the Legal Aid Agency,’ Jones reported.

Domestic violence
That issue was addressed by the second set of witnesses comprising Clare Laxton of Women’s Aid, Emma Scott, if Rights of Women and Philippa Newis of Gingerbread. New legal aid evidence criteria contained in regulations which came into force earlier in the year – including evidence of police bail for a domestic violence offence, a Domestic Violence Protection Order, referral to domestic violence support services from a health professional and evidence of not being able to access refuge accommodation were proving effective. Emma Scott ‘welcomed’ the regulations. MPs were told that almost 40% of women did not have the forms of evidence required post-LASPO. Emma Scott lamented that the ‘evidence criteria is still restrictive’ and pointed out that evidence older than two years could not be used. Proceedings often take place long after the occurrence of violence, according to Scott. Clare Laxton welcomed the change whereby women can now demonstrate refusal to a refuge to support their application for funding.

Philippa Newis offered insight into the role of health professionals in supporting applications under the post-LASPO gateway. She said that they were ‘gatekeepers’ of the legal aid scheme and called upon them to do more to support women. Philippa Newis said the new evidential requirements could present ‘unnecessary hurdles’ to get the evidence required with some medical professionals charging for writing a letter and others refusing to do it altogether.

Rashida Manjoo, UN special rapporteur on violence against women, made a visit to the UK in April 2014, and offered the international perspective. In her concluding remarks, she stated that ‘in theory, legal aid is still available to women survivors of domestic violence’, but ‘in practice (LASPO) has led to a higher threshold of evidence’ being required.

No panacea
A final key issue raised in the meeting was the resolution of disputes out of court. Dave Emmerson claimed that ‘the hope that mediation would be the panacea (post LASPO) just hasn’t happened’. In fact, there has been a dramatic decrease in the number of referrals to mediation. According to Jane Robey, there has been a ‘vacuum’ post-LASPO, which has resulted in the ‘collapse of mediation numbers’.

Robey went on to recommend a free mediation session to encourage settlement out of court, whether or not the case is publicly funded. This would encourage a ‘culture change’ toward amicable settlement, and lessen the strain on the courts, Robey said.

Nick de Bois asked if, aside from a return to pre-LASPO funding, there was a solution to the issues raised by the panel. Dave Emmerson stated that the government should relax both the payment for initial legal advice and the domestic violence gateway, to allow a ‘catch-all clause’, permitting other forms of evidence to be put forward. Both Nicola Jones and Susan Jacklin QC agreed with these suggestions.

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