Author Archives: Shanika Varga

Stowe Family Law Harrogate and litigants in person

Stowe Family Law Harrogate and Litigants in Person

By Shanika Varga of Stowe Family Law Harrogate.

Litigants in person- the unrecognised victims

Since the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) legal aid has been restricted to only covering family law cases which involve domestic violence which can be proven, most other private matters are now out of scope. This has resulted in a significant increase in litigants in person in divorce and financial proceedings and proceedings relating to children.  The National Audit Office (NAO) has reported a 22% increase in cases involving contact with children and a 30% increase across all family court cases in which neither party had legal representation.

A litigant in person is someone who conducts legal proceedings on their own behalf without a legal professional. It is very often the case that a LIP will have sought legal advice at some stage during the proceedings, whether it be that they instructed someone to start off with but simply couldn’t afford the legal fees, that they started proceedings as a LIP but then sought legal representation further down the line or that they receive ad-hoc advice out of court but self-represent during hearings.

Litigants in person have been referred to as the ‘victims’ of the legal aid cuts but from my personal experience it is all the parties that are involved in a case where one person is unrepresented that become victims of the cuts to Legal Aid.

In the past 12 months I have been involved in several matters where one party was self-representing. The issues that were brought to my attention were numerous. One of the concerns expressed prior to LAPSO coming into force was that the inevitable increase in LIP may clog up the courts. Research conducted by the NAO showed that hearings involving LIP’s take around 50% longer on average.   During a recent Children Act hearing, the unrepresented parties’ failure to adhere to orders that had been made resulted in the Final Hearing being adjourned due to evidence not being available. This meant the matter was relisted for the earliest possible date, this was 4 months later! Not only that but the District Judge decided that because one party didn’t have legal representation, the time estimate for this hearing should be increased from one day to two days. It was quite evident, that this was necessary, the unsuccessful hearing was exhausting. The unrepresented party continued to interrupt both the District Judge and our client’s barrister, hadn’t brought any of the documents they were previously ordered to and had even failed to bring the court bundle that was sent to them by ourselves only days before, which included a very clear letter stating these documents must be brought to Court. Although the District Judge remained patient and gave the LIP the required leeway, the frustration was clear. What could have been an effective hearing had the LIP had legal representation was now a full wasted day…

The victims? The LIP, our client and most importantly the children! The LIP likely left that hearing more confused than when they entered. Our client now had to pay for an ineffective hearing and had the added cost of attending a further, now two day hearing! Not only this but the Family Procedure Rules dictate that the onus is on the represented party to prepare court bundles and documents, even if they aren’t the party that made the application as is the usual practice, thus resulting in more costs! But more disappointingly, the children were no closer to what could only be described as acrimonious and difficult proceedings coming to an end. Although it is practice to ensure that children do not become involved in proceedings in order to protect their emotional welfare, it is extremely difficult to keep them completely shielded. Children are perceptive and pick up on their parents emotions and actions, even with no mention of court hearings or proceedings a child is likely to be aware of mood changes or strained interactions, no matter how well a parent thinks they are concealing these feelings. The longer the proceedings continue, the longer the children are left with uncertainty and the longer they are exposed to the inevitable stress and upset their parents are feeling as was the case in this situation.

Late last year I attended another Children Act Final Hearing. The matter had been ongoing for a year. As is often the case, our client didn’t feel as though they could deal with the proceedings without legal representation and with something as precious as their child’s future didn’t feel it would be right to go ahead without assistance, who could blame them? Much to our client’s relief the matter settled on the morning of the Final Hearing, but unfortunately there was a feeling of disappointment that matters had gone this far. The unrepresented party commented that an agreement could be reached sooner had they been received certain advice, or in other words had they had a solicitor. I would go one step further and question had they been able to access a solicitor via legal aid, would they have even issued the application? It may well be that they would have done so anyway, but it is fair to say that had they obtained legal advice, it is highly unlikely that they would have issued the application on the basis they did, the unrepresented party sought a division of time which the court’s were very unlikely to order and any good solicitor would have advised exactly that. Furthermore negotiations would have been more successful had there been a solicitor representing them. It is very often the case, that without guidance, a LIP will dig their heels in, when faced with correspondence from a solicitor there seems to be a tendency to either bury heads and ignore or push back harder. With the assistance of a solicitor, a difficult situation can be resolved much quicker as a solicitor will provide the much needed voice of reason.

Another issue that I witnessed was the amount of unnecessary applications made when one party was unrepresented. In the Children Act matter mentioned above the court went as far as making an order pursuant to S91(4) of the Children Act 1989. A S91(4) order is made in cases where there is a history of unreasonable and repeated applications. Where the above criteria is met, in the future should either party wish to make a further application, they would first have to make an application to the court seeking permission to do so. Only if permission is granted, would they be able to then make the substantive application. This type of order is used only as a last resort. In the aforementioned case, within the period of 4 years there had been 4 applications made in respect of the child arrangements.  This was clearly a case where a S91(4) was required. But again, I asked myself whether this would have been necessary had the unrepresented party had legal advice. I again encountered this issue during financial remedy proceedings, one party was unrepresented and two applications were made in the space of 8 weeks, the first application was so poorly made that the District Judge advised that although they wanted to make the order they simply couldn’t, the second application weeks later, although successful, was completely unnecessary, had the party in question obtained legal advice in the first instance, the initial application would have been successful without the need for a second hearing! These applications resulted in additional stress and costs for our client.

What has been evident through my involvement with cases where one party in unrepresented is that what is already an extremely difficult process becomes even more so. Increased costs for the represented party, unsuccessful negotiations, lengthy and sometimes unnecessary hearings and more heartache for all those involved, it surely cannot be said that the only victim is the LIP in these cases?

Photo by Alwyn Ladell via Flickr

The many faces of the family lawyer

Recently, I have been involved in quite a number of matters which required a much higher level of sensitivity due to the individual facts of the case.

I found myself having conversations that I didn’t ever expect to have whilst I had my ‘professional hat’ on. At law school we are taught how to interview a client, how to build a professional relationship with them and how to obtain instructions, but we are not taught how to reassure a victim of domestic violence or how to calm a spouse who has just discovered that their partner is cheating on them. Those are skills we have to learn and develop on our own.

Although I think there is an element of ‘learning on the job’, I strongly believe that with most family solicitors, these are skills that come naturally to them.

Family matters must always be treated with a higher degree of sensitivity, the very nature of family law is that it is highly personal. Not only are you dealing with a client’s assets but you are also dealing with their lives. When asked what is most important to most of us, although our careers will be a factor (especially in the legal sector!) most of us will say the wellbeing and happiness of those we love ranks fairly high.

Family law therefore is at the heart of people. The level in which people are invested is so much higher than other areas of law and with this comes the necessity to treat each situation not only with respect but with compassion.

My time at Stowe Family Law has really made me think about the role of a family lawyer. Family solicitors very often end up playing the role of legal advisor, therapist and sometimes friend.

Family matters are often protracted and over time a relationship is forged between client and solicitor. The nature of the relationship between solicitor and client will differ from that you would find in a commercial transaction.

A family solicitor knows the intimate details of a client’s marriage or the personal history which has led to them seeing a solicitor and very often will see the client at their most vulnerable. The family law solicitor will often find themselves in a situation where they have to change their tact constantly throughout the day, from being firm and sometimes aggressive with the other side of the matter to taking a more delicate approach with your own client.

Adoption on the rise

It was reported by the Department of Education that Adoptions are at their highest since 1992. There were 5050 ‘looked after children’ adopted during the year ending 31 March 2014: this is a 26 per cent increase from 2013 and a 58 per cent increase since 2010.

What is a looked after child?

Under section 22 of the Children Act 1989 a child is ‘looked after’ if they are in the Local Authorities care or provided with accommodation for a continuous period of more than 24 hours, subject either to a Care Order as per S31 of the Children Act 1989 or subject to a Placement Order as per section 21 Adoption and Children Act 2002.

This increase is despite the 47 per cent decrease in ‘Adoption Decision Maker’ decisions between July 2013 and September 2014, as reported by the National Adoption Leadership Board in December of last year following the case of Re B-S. ADM decisions are made in the second stage of adoption when all checks on the prospective adopters have been reviewed and the panel have made their recommendations. It was felt by the Board that the judgement in Re B-S created a great deal of uncertainty and resulted in the release of a myth buster in response to the comments made in the judgement, with the aim of clarifying and de-mystifying the law in this area in the hope that adoption decisions would subsequently rise and thus adoption figures would rise in turn.

Whether adoptions will rise further is yet to be seen but the increase so far has been partly attributed to the Action Plan on Adoption which was published in March 2012 and sought to reduce the time taken for a child to be adopted. The Department of Education reports that the average time from a child initially being taken into care and their adoption has reduced by 2 months. It was further reported that although most looked after children (37 per cent) are aged 10-15, those aged one to four made up the highest proportion of looked after children to be adopted. Research carried out by the Family Finding Study found that placement stability and quality was a significant factor in successful placements and this was largely attributed to younger children having fewer behavioural problems.

What is evident from the report published by the Department of Education is that although great headway has been made vast improvements need to be made in order to ensure that as many children ‘looked after’ by the Local Authority are placed in permanent homes.

How I became a trainee solicitor

My reasons for considering a career in the law may not be as inspirational as some. The idea was first put into my head by several of my teachers at secondary school commenting that my argumentative nature would suit the profession. This opinion was echoed by my family members and I am sure my long suffering fiancée wouldn’t disagree either.

I decided to explore this career option during my year 10 work experience. I spent two weeks at a firm in my hometown and thoroughly enjoyed my time there. Although the work was not overly legal I gained a real insight into how a practice runs on a day-to-day basis and, from then on, a legal career was my focus.

My path toward family law

I studied my LLB at Keele Univeristy and the three years flew by. Before I knew it, it was April 2012 and I was about to sit my finals. At this point, I honestly hadn’t given a massive amount of thought to training contracts. I had managed to secure a place on the LPC to start September 2012 but, after a lot of thought and consideration, decided that it would be best to defer the LPC for a year. This would give me the chance to earn some money to help pay for the LPC and to re-motivate myself. Third year really took its toll on my enthusiasm for the law!

My reason for not applying for training contracts was simply that I didn’t know what I wanted. There are so many different firm structures and areas of law that I didn’t see how I could tie myself down or make a decision without knowing more about what was out there. The law you learn at University is very different to the LPC or practice. It wasn’t until my year out working that I started to get more of an idea of the kind of solicitor I wanted to be. It was more a process of elimination than a ‘eureka moment’ but with each different area of law I experienced I could definitively say that it wasn’t for me.

Throughout University I was drawn to Family Law, choosing modules which complimented this area. However, it wasn’t until I started the LPC that I truly realised that this was the area for me.

 

When I first started the LPC..

I didn’t know what to expect. I had been told so many contradictory things by former LPC students. The jump from studying my LLB to the LPC was huge; the style of work, teaching and learning is completely different. It was no longer about how much case law you can regurgitate and so much more to do with your application of the law to facts. I was relieved, although it was an extremely intense nine months. I really felt like I was becoming a legal professional. I felt so much more prepared for starting a job in the legal sector than I did when I started.

It was during the second term of my LPC that I decided family law would be my focus. I took the family law module and I finally found a subject where everything made complete sense! All the other LPC subjects had been fairly easy to study but Family Law just clicked. This now meant that I could really focus my attention on the right kind of firm and I found that my applications had improved one hundred fold! It is so much easier to convince someone that you are right for their firm when you truly believe in what you are saying!

 

My transition into trainee life was fairly straightforward and quick.

I finished the LPC in June 2014 and started a job at a legal aid firm immediately. During my time there, I saw the advertisement for a trainee position at Stowe Family Law and sent my CV and a covering letter off, no application forms with trick questions. I was called for an interview shortly after and then attended the Harrogate office for a trial against another candidate and within a month I started.

Throughout my whole trial I questioned everything I did, even things that were second nature to me in my previous job. I think that is just the nature of the sector. We are taught from the moment that we start our LLBs, even before that when we are applying to universities, that we have to be the best.

If you were a larger fish in small pond, like I was at secondary school, it is quite an adjustment being surrounded by thousands of people just as clever and just as experienced as you are. I found that I got into the habit of constantly comparing myself to those around me. What I had learnt by the time I got my training contract though, was that this is pointless. Landing a training contract can be just as much to do with luck as ability. I very easily could have missed the advertisement for my training contract, or had a job not conveniently around the corner and not been able to sneak off for my interview in my lunch break.

What differentiates one law student from another is very often minimal and sometimes it can just come down to timing of applications or advertisements. Many law firms won’t just look at experience and ability but will look at your personality. Finding a trainee that will not only fit in with colleagues but will also fit in with the firm ethos is important to employers. They want to find a candidate that they know will approach things in the same way they would, so it is important to research firms’ reputations. If they are known to take an aggressive approach, it’s important to ask yourself whether this is the type of solicitor you want and can be. Work experience is an excellent way of gauging what a firm is like as a website will only show you so much. Actually spending a week in the environment will often show you whether you would be a good fit.

The most important thing to do though is persevere. Not many of my LPC class had training contracts when we started the LPC and I know many now that still don’t have them. It’s very hard not to give up and I had many wobbles along the way but as soon as I had a clear vision in my head of what I wanted it all became a lot easier. I was more motivated, I had more focus on what  I was aiming for and more importantly I had the confidence that it was the right move for me.