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