Some of you may remember from my previous blog on the subject as of Monday 1st April 2013 the Legal Services Commission was replaced by the Legal Aid Agency, and the cuts imposed by the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 took effect. My previous post explained the effect this would have on the system, in short legal aid would only be available in public family law regarding protection of children; private family law with evidence of child abuse; child abduction representation of children in private family cases; legal advice in support of mediation; domestic violence injunction cases; and forced marriage protection orders: a drastic change from the legal aid available pre-1st April 2013. These cuts have led to the predicted rise of litigants in person, as those on low incomes fight in private family law cases to resolve both their divorce and child matters. The Legal Aid cuts haven’t stopped the need these people have to gain divorces and resolve their issues in regard to their children.
In January 2012 Grania Langdon-Down wrote an article for The Law Society Gazette entitled, ‘Litigants in person could struggle to secure access to justice’. Within this article the author talked of the prospect of a huge increase in litigants fighting their cases themselves, something which should surely have been within the minds of those who passed the LASPO 2012. The Law Society Gazette goes on to quote The Civil Justice Council, who stated that ‘It is hard to overstate just how difficult it can be – for the person, for the court and for other parties – when someone self-represents.’ Following on from this the article quotes District Judge Nick Crichton, who sits in the Inner London Family Proceedings Court, ‘‘Where do I start?’ he says. ‘We are getting more and more people coming to court in private law cases without the benefit of sensible, structured legal advice, wanting to spill blood on the court carpet. Angry with each other, they shout across the court, they refuse to listen when you try to calm them down and it is very difficult to find a solution that they will go away and work with. The government wants people to stay out of court but it is very difficult to get people to mediate when they are still very angry and haven’t had the benefit of decent legal advice. These cases take an inordinate amount of time, which is having a knock-on effect on public law cases getting before a judge.’’
In June 2013 BBC’s Radio 4’s Law in Action investigated what, after just a few months of the legal aid cuts, had changed. Rebekah Wilson, a family barrister from Tooks Chambers in London, told BBC Radio 4 that she “recently had a case involving a four-year-old and a six-year-old where the four-year-old was being kept by his father after contact as and when he pleased…The four-year-old was very unsure about where he lived and who he lived with. Prior to 1 April the mother could have got legal aid but now she probably doesn’t get it.” Furthermore, Cathy Barton, a family lawyer from Somerset, stated that ‘she recently turned away a woman who said she had been raped by her partner, and who wanted legal advice regarding the breakdown of her relationship, because she didn’t have medical proof that she had been abused. ‘For us to have to send her away and say come back with some medical evidence was just entirely contrary to all of our beliefs and ways of working,” says Ms Barton. “She hasn’t come back to us yet.” The problem, if nothing else, being that individuals such as the rape victim above often have no access to money and ‘a doctor’s letter costs about £50, a memorandum of conviction £60 and a police disclosure £75.’ Sadly, these are not the only cases of this kind seen by family lawyers on a daily basis now.
The Ministry of Justice recently produced statistics which showed that the number of litigants attending out-of-court sessions in order to resolve their issues has fallen by a massive 47% since the legal aid cuts. Why? Arguably because these litigants are no longer attending solicitor’s offices and being directed toward mediation, many litigants have no knowledge that this out-of-court settlement even applies to them. This evidence completely contradicts the justifications put forward by ministers in support of the cuts: that the cuts would reduce pressure on the courts, reduce confrontation between litigants and save the taxpayer money. The exact opposite appears to be occurring.
The Ministry of Justice’s Annual Report and Accounts for 2012-2013 showed an underspend of approaching £57million across the board in Legal Aid. The argument that legal aid cost too much appears to be somewhat flawed and as ‘Chris Grayling, the justice secretary,… prepares to defend his changes to the justice system in front of parliament’s joint human rights committee, the shadow justice secretary, Sadiq Khan, said the government was wrong to claim legal aid cost too much.’ (The Guardian, ‘Legal aid cuts criticised after underspend’)
In response to the cuts and the predicted rise in litigants in person on the 19th April 2013 the Law Society produced guidance for ‘all solicitors who may need to deal with litigants in person (LiPs) as part of their work’, which outlined ‘the issues that [a solicitor] should take into account [when dealing] with LiPs, including managing any conflict between [their] duties to the court and duties to [their] client, and other areas of sensitivity.’ But it would appear that such guidance isn’t enough. Ryder LJ, when giving judgement in C (A Child) & Anor v KH, stated that ‘the case presents a salutary lesson to us all to put in place procedures and practices which can accommodate litigants in person who do not know the rules and practice directions of the court.’
It would appear that the effects of the legal aid cuts are heating up and those opposed to them are becoming more and more restless with critics of the cuts forcing ‘an emergency meeting of the Law Society to consider a no confidence motion in the profession’s leadership.’ (The Guardian, ‘Critics of legal aid cuts force Law Society vote’). This will be an ongoing battle and the outcome cannot be predicted, but for now litigants in person will continue to rise and the courts will continue to struggle under the strain of accommodating these individuals as best they can.
If you are interested in reading any of the articles or papers referred to above, please find below links to each page:
The Law Society Gazette: http://www.lawgazette.co.uk/63815.article
BBC Radio 4’s Law in Action: http://www.bbc.co.uk/news/uk-politics-22936684
The Ministry of Justice’s Annual Report and Accounts for 2012-2013: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/208728/moj-annual-report-2012-13.pdf
The Guardian, ‘Legal aid cuts criticised after underspend’: http://www.theguardian.com/law/2013/sep/30/mediation-services-legal-aid
The Law Society’s Litigant in Person Guidance: http://www.lawsociety.org.uk/advice/practice-notes/litigants-in-person/
Need for procedures which assist litigants in person, Ryder LJ: http://www.familylawweek.co.uk/site.aspx?i=ed121692
The Guardian, Critics of legal aid cuts force Law Society vote: http://www.theguardian.com/law/2013/nov/19/legal-aid-cuts-law-society-vote
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