‘We do not consider that it will generally be in the best interests of the children involved for these essentially personal matters to be resolved in the adversarial forum of a court. The Government’s view is that people should take responsibility for resolving such issues themselves, and that it is best for both the parents and children involved.’
(Gov.uk, ‘Proposals for reform of Legal Aid in England and Wales’ (Ministry of Justice, November 2010) <https://www.gov.uk/government/publications/proposals-for-reform-of-legal-aid-in-england-and-wales> accessed 11 December 2018, 4.210 )
To what extent do you agree with this vision of family justice?
In this essay the Government’s vision of family justice set out in the ‘Proposals for reform of Legal Aid in England and Wales’ and subsequently implemented by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will be argued against on the basis of the vision failing to work in practice. The reforms were oriented around the removal of legal aid in the vast majority of private family cases so we will begin with a discussion on the history and purpose of legal aid. We will first discuss the history and principles of access to family justice to place the government’s vision in context. Then we will discuss the vision of family justice in detail and turn to consider it’s negative effects on the mediation and court process with reference to a number of studies and academic opinions including discussion by Lady Hale and Liz Trinder’s study on litigants in person in private family law cases.
The History and Principles of Access to Family Justice
Legal aid is defined in Jowitt’s Dictionary of English Law as “a scheme for the payment of legal costs for persons with insufficient means to fund legal costs.” In 1949 the Legal Aid and Advice Act brought in provision for legal aid in various types of cases. This was considered a “fundamental pillar of the post-war welfare state” being implemented at the time, alongside the formation of institutions such as the National Health Service. This version of legal aid was built on the promise of ensuring that “everyone had access” to the delivery of justice in what was considered “an attempt to recognise the law’s democratic deficit, the exclusion of the poor.”
Since the initial introduction of legal aid provision, there has been a steady decline in the percentage of the population eligible. In 1949, about eighty percent of the population qualified, in the early 1990s this was estimated to have fallen to about forty-five percent and “by 2008 that figure had dropped to twenty-nine percent.” This could partially be due to an increase in GDP per head in the UK and the increased size of the so-called middle class. However it is also due to the increased restrictions implemented by the government. Following the financial crash in 2008 there was considered to be great public concern for government expenditure, so both of the leading political parties promised major reform of the legal aid system in their 2010 manifestos, with the Conservative Party pledging to “carry out a fundamental review of legal aid” and the Labour Party promising to “find greater savings in legal aid and the court system”. The different types of legal aid available prior to the reforms included legal help, help at court, family mediation support, general family help and full legal representation. Without legal aid, people are forced to act as litigants in person defined by Osborn’s Concise law Dictionary as “one who sues or defends without legal representation” or in common law as simply “an unrepresented individual”.
Before moving on to discuss the reforms envisioned and implemented by the Conservative-Liberal Democrat coalition, we must first consider the principles upon which original legal provision rested on the basis of and how these principles related to a certain conception of family justice. The argument goes as follows, access to justice is founded on the basis of “the rule of law and equality” and to ensure equality before the law, we must ensure “the ability of all people to have basic equality of access to the law.” In the context of family justice this would lead one to conclude that, for example, ex-partners in dispute over child arrangements should both have equal access to legal representation regardless of the income of either party. This culminates into the conclusion that “legal aid is a vital part of a fair and functioning justice system” and that if the government is concerned with access to family justice, they must “establish a system providing those who cannot afford to pay for lawyers with a form of subsidised legal services paid for out of public moneys”.
The Government’s Vision of Family Justice
The vision of family justice the government chose to implement had two connected lines of reasoning. The first was that court is not the best forum for solving family disputes and the second is that it is better for the children involved that people in dispute take responsibility for resolving the issues themselves. This was a rejection of the previously discussed view of family justice regarding the necessity of legal aid to justly settle disputes.
When discussing family justice in this context, it is important to remember that what is not being considered is the legal principle, instead the debate centers “the availability of resources and good standards in management and practice”. The government believed that where the issue in dispute was one which arises from the personal choices of the litigant, it should be less likely to be considered to “concern issues of the highest importance.” They also accepted that these reforms may result in “some worse outcomes materialising” for those representing themselves but stood by the vision of family justice regardless.
Despite only 3 percent of the respondents to the official consultation expressing support for the proposals and disagreement from around ninety percent, on the 1st of May 2012 the Legal Aid, Sentencing and Public Offenders Act 2012 obtained royal assent having passed with a majority of 78 in the House of Commons upon third reading. It removed the routine availability of legal aid in 13 areas “including most private family law cases” giving the Lord Chancellor the ability to set future criteria for civil legal aid as per s.11 of the Act; the Lord Chancellor’s ability was restricted to only reducing “the provision of publicly funded services but not to restore them.” The cuts to legal aid took effect upon the first of April 2013. Since then, overall legal aid expenditure “has fallen by over 20%”. In 2010-11 civil legal aid was provided to litigants in 785,000 cases but by 2017-18 the figure now sat at 140,000. In 2012, an estimate forty-six percent of private family cases had a lawyer on each side compared to 2018 in which nineteen percent did. The government reserved legal aid for only victims of domestic abuse provided that these victims were “intimidated or materially disadvantaged by facing their abuser in court”.
So how does this relate to the government’s conception of family justice? Essentially the logic here is that the availability of free legal support was encouraging litigants to bring family disputes to court which is argued to be a bad forum for solving these sorts of dispute. In addition to this, the argument is that offering legal aid funded by the taxpayer stops people taking responsibility for solving the disputes themselves. This vision of family justice centres around encouraging litigants to use services such as mediation to resolve their disputes outside of court and litigants funding their own disputes. Following LASPO 2012, the Children and Families Act 2014 was passed in which s.10(1) stated that “before making a relevant family application, a person must first attend a family mediation information and assessment meeting” (MIAM). In the House of Commons in the second reading of this bill, it was said that mediation is both “cheaper and quicker than court” and that “its settlements are often better observed and less divisive than court judgements”. Having now considered the vision of family justice in discussion, we now turn to the problems caused by its implementation and why it is an insufficient way to run the family law system.
Mediation as the Forum For Resolving Personal Matters
The government’s starting principle for their vision of family justice is “that separated parents should resolve their disputes out of court whenever possible.” To fulfill this vision they emphasised the solution of mediation which “is a process in which a third person helps the participants in a dispute to resolve it.” As previously mentioned, legislation has passed preventing litigants making either a C100 application (which is mainly used for child arrangements order) or a Form A application (which is used for financial orders in divorce cases) until they have attended a MIAM. This was to reflect the lack of expected increase in mediation assessments following the passing of LASPO 2012 as there was a decrease in fifty-six percent of “mediation assessment in the year after the reforms.” Following the mandated MIAM requirement “the number of mediation starts continued to reduce.” In 2017 the number of cases assessed for mediation had fallen to just 13,000 from 31,000 in 2013.
So why has this vision of family justice failed so dramatically? The government has done all they can to encourage mediation including offering funding, and mandating the process and yet people have decreased in their usage of the service. “Litigants who are themselves “keen to go to mediation are in the minority” and so the “lawyers were the primary source of referrals to mediation” (whose advice was previously funded by legal aid). In a study of the practice of lawyers in private family law cases that took place prior to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, 9 out of the 14 solicitors that were interviewed stated that they refer their clients to mediation before embarking on the court process. Among the other issues discussed in this study is that solicitors from firms in rural areas pointed out there is a lack of “easy access to mediation services” outside of cities. Speaking anecdotally from time spent working with litigants in person through the Personal Support Unit, the MIAM requirement is perceived as a box ticking exercise rather than a solution to the issue of fixing child arrangements; the national statistics showing a low uptake of mediation show this may be a wider issue. Litigants in person (hereinafter referred to as LiPs) are bringing their disputes into the legal world because they believe it is unresolvable by any other means and therefore do not have a natural inclination towards attempting mediation. It seems like LiPs perceive mediation as a halfway point to bringing the dispute to court and mediation attempts are more of an exercise in time wasting than working towards a meaningful solution in their child arrangements or financial dispute.
In cases with financial inequality between the parties there will often be a represented side against an unrepresented side. This gives the represented party a significant advantage in court but less of an advantage in mediation, due to the differences of informality in the processes, therefore meaning that “the stronger party have little incentive to mediate.” There is also another issue of bargaining power in cases where only one party has been able to afford legal advice. This issue has two aspects. The first is the difficulty in being able to negotiate effectively in a mediation process where you are not aware of the full extent of your legal entitlements. The second is that if both parties are aware that one party will be significantly advantaged by taking the matter to the courtroom, this creates an inequality of bargaining power which may prevent parties from reaching an agreement that they are both comfortable with.
None of this is to say that mediation does not has it’s advantages. As previously discussed mediation tends to be cheaper for the taxpayer and litigants, and it’s arrangements are usually better observed. However, it simply cannot replace the court process and the primary forum for settling disputes. Not only do unrepresented litigants have very little interest in engaging in mediation there are also a significant number of cases where this forum is not acceptable. In cases of alleged domestic abuse, it is not fair to force the victim to confront their abuser in an environment such as mediation, as victims “are likely to experience great anxiety about meeting their ex-partner.” This fear and anxiety taints the mediation process and prevents any sort of meaningful outcome being agreed. There are also issues in urgent cases of direct risk of harm. Emergency hearings take place in child arrangement proceeds where the child in question is at risk of harm - this could be from substance abuse, domestic abuse or their environment. In these cases, mantras about people taking responsibility for their own disputes become meaningless and the focus should be entirely on preventing the child from being hurt. It is clear then that mediation is not appropriate. In cases of an urgent application, the government has accepted this and has set out exceptions to the requirement of a MIAM where the delay caused by attending a MIAM causes “risk of harm to a child; a risk of unlawful removal of a child from the UK;... risk of a miscarriage of justice, unreasonable hardship to the prospective applicant; or irretrievable problems in dealing with the dispute.” This shows another clear example of where mediation is not the correct forum for resolving the dispute and instead the court is significantly more appropriate.
Therefore, due to the reasons above-stated, mediation can only have a limited role in the family justice system. Therefore for the government vision of family justice to work on the basis of people taking responsibility for their disputes, it leads to the conclusion that people should either fund their own legal representation or represent themselves in person in court.
Taking Responsibility For Resolving Disputes
This is when the vision of family justice becomes particularly problematic. The court system was not designed for LiPs and therefore the experience of a litigant in person tends to be one of great difficulty. Trinder speaks of LiPs experiencing fear, anxiety, bewilderment, frustration and the feeling of marginalisation during the court process. LiPs also often have difficulties such as “poverty, mental health problems, physical disabilities and abusive relationships” which makes the process even harder. Trinder also picks out two key tasks in the court process that were particularly difficult for LiPs: “the preparation of bundles and cross-examination.” A handbook designed for LiPs attempting family proceedings created a seventeen page “jargon buster” to help allow litigants to understand the legal terminology used in court. These difficulties lead to the very real risk that “expectations of independence may divert people who need to access court.”
When a significant number of litigants are self-represented there are also certain distinct problems for the court. A high volume causes significant delays due to hearings taking more time. Hearings take longer at all stages of the process because legal advisors or judges have to take on the role of giving explanations as to what is happening. This also makes it harder for them to adjudicate on the matter in hand. These sorts of experiences have lead to reports of “parents abandoning efforts to maintain contact with their children.” This is certainly not in the best interests of the child as the longer child arrangement proceedings drag on, the longer the child will live with uncertainty in terms of their living arrangements and the relationship they will have with their parents. Interestingly in the United States of America they have created small claims courts that are specifically designed for LiPs “and some states ban lawyers entirely or permit them only when both sides are represented.” This may be a more effective method of getting litigants to take responsibility for their own disputes while not significantly disadvantaging them in the litigation process.
Litigants in person tend not to understand their legal entitlements and therefore their rights become meaningless as they do not have the “mechanisms for their effective vindication.” There is also the added issue of “the inevitable emotional dimension to every case” which makes it harder for LiPs to effectively advocate their case in court. These factors culminate in issues not only inside the courtroom but outside of it as well. Private family cases that have representation on both sides often resolve outside of the courtroom with negotiations taking place between the lawyers, where as LiPs are considerably “less likely to settle cases outside of court hearings.” Before LASPO, seventy-three percent of agreed orders were achieved through lawyer negotiation as mediation uptake was relatively low. To negotiate effectively one needs to know what power one has in said negotiation through knowledge of one’s legal position; LiPs do not have this luxury so they are unable to effectively take responsibility for their own out of court settlement meetings and struggle to come to an agreement they are comfortable with.
There also has been a more specific problem caused by the government’s vision of people taking responsibility for their disputes and removing legal aid regarding cases where domestic abuse has taken place. Despite assurances by the government that legal aid will still be available in abuse cases, victims have still been representing themselves. In a BBC Panorama documentary about the legal aid cuts District Judge Nicholas Crichton said “I think it’s shocking that a woman has to be put in a position where she must cross-examine her abuser.” This is the reality of the courts. It also the case that victims now have to “contemplate being asked questions directly” by their abuser about the abuse they have suffered. As explained by Baroness Hale in Re W (Children) (2010) this kind of testimony should be heard “in relaxed and comfortable surroundings” to help the court ensure the reliability of evidence admitted. Part of the reason for this is the evidential burden placed on a victim to prove they have suffered domestic abuse to allow them to claim legal aid. Research has shown that “40% of women who had experienced or were experiencing domestic violence could not produce any of the prescribed forms of evidence.” This is now the horrendous reality of our system of family justice and shows how ideas of individuals taking responsibility for their disputes result in the most vulnerable being adversely affected. In 2011 Lady Hale set out two concerns in relation to the oncoming cuts to legal aid, the first being that people with good cases will not pursue them due to the inability to fund themselves, causing a denial of justice; and the second being that people with either good or bad cases will pursue them as LiPs which will be “time consuming and inefficient”.
Of course LiPs aren’t completely alone in the court process; there are charities and services that can offer practical and emotional support to LiPs while being unable to give legal aid (which will be referred to as assisting services). Organisations such as the Personal Support Unit (PSU) or the Citizens Advice Bureau (CAB) have seen a vast increase in the number of clients using their services, for example the PSU helping 7,000 people in 2010-11 moving up to 65,000 in 2017-18. A striking statistic, providing the effect of these services on our system of family justice, is that of these 65,000 clients, just under sixty percent, were private family cases. These assisting services have a huge impact in terms of helping empower clients to take responsibility of their own cases, for example helping the twenty-three percent of their clients for whom English is not their first language understand court documents and processes. The problem with these services is two-fold. Firstly, they struggle to meet the demand that has been placed upon them since the legal aid cuts. The Director of Citizens Advice Bristol explained the the demand keeps growing but due to the funding sources available, CAB has to consider reducing their services instead of increasing them to meet the demand. The states reduction in funding is occurring despite the vast savings of public funds that the small amount of assistance CAB causes. This links strongly to a critique of the systems of legal aid which argues that part of the issue with the functioning of these systems comes from the fact that they are “supply-shaped, rather than demand-led.” What this means is that part of the reason CAB, PSU and other assisting services are unable to help people effectively is that their budget constrains the amount of support they can offer, rather than the amount of support needed by clients leading to the size of the budget available.
The second issue comes in the form of the limitations that theses services have. Most tend not to be able to give legal advice - defined as “oral or written advice on the application of English law to any particular circumstances that have arisen in relation to the person seeking the advice.” They are also unable to speak for the client in court which can cause issues when the client is struggling emotionally when they are supposed to be putting across their argument. “The adversarial process is predicated on the notion that parties are aware of their legal entitlements” and therefore this lack of access to free legal advice from assisting services causes serious issues for LiPs.
Another service available for those LiPs attempting to take responsibility for their own claim while unable to afford legal representation is that of McKenzie Friends. They are “unqualified but can sit beside a claimant or defendant giving advice and help” in court. However they cannot represent the litigant as they lack rights of audience; they have “no official legal status.” The reason this service is being resorted to is having a McKenzie friend rather than full legal representation can be a significant cost saving technique. In a world of austerity, McKenzie friends are sometimes the only viable option for the unrepresented litigant. This service also does not offer legal advice but studies have shown that McKenzie friends routinely complete activities that can appropriately be described as legal advice such as “outlining options available to the prospective litigant, helping the LiP to focus on relevant rather than irrelevant issues and advising on possible pathways.” Since these McKenzie friends are not legally qualified, them providing advice causes a breakdown of the system and can lead to serious miscarriages of justice. In the context of family justice this could result in ruining a child’s relationship with their parent or a wildly unfair financial divorce settlement being reached. This highlights the unintended consequence of people taking responsibility for their own cases and therefore it is prone to cause some serious issues for families across the country and damages family justice.
Conclusion
The vision of family justice that argues it is best that personal matters are resolved outside the adversarial forum of a court is clearly misplaced when put into practice and the idea that people should take responsibility for resolving cases themselves is flawed in principle. Mediation is clearly unable to provide a suitable forum in cases of both domestic abuse, and risk of harm. In cases with inequality of representation, mediation is also unable to function correctly. While in principle mediation can create better outcomes for the parties involved, its role can only be limited due to its suitability in the vast majority of cases. People shouldn’t have to resolve the argument themselves. By the time they bring the dispute into the legal world, they will have already tried this and they need the legal system to provide a concrete answer. This means the only way for a litigant to take responsibility for their own case is to pursue their case through the court system, which is a system fundamentally designed with representation in mind. A vast proportion of the population cannot afford to fund full or even partial representation in court and therefore this leads to a significant increase in the number of litigants in person. This causes problems such as miscarriages of justice, delays, inequality of bargaining power, confusion and emotional trauma experienced by litigants. Assisting services are unable to sufficiently help LiPs to represent themselves and McKenzie friends are unable to fill the void that a lack of representation causes. All this combined shows how deeply flawed and short sighted the mantra of personal responsibility is and it can only culminate in the belief that this vision of family justice can only be disagreed with. Finally, it is important to note that the responsibility being shifted is from the state onto the litigant and therefore we will conclude with a quote justifying the introduction of legal aid in 1945:
“The State is not responsible for the outbreak of epidemics, for old age or economic crises. But the State is responsible for the law.’”
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