I recently posted on the dire situation facing the judiciary, noting the comments made by District Judge Nicholas Crichton about our courts being stacked out with Litigants in Person (LiP) and the detrimental effect it is having on the entire family justice system. I hadn’t understood quite how alarming the situation is until I appeared on This Morning last week to discuss grandparents’ rights. Thereafter I had a taste of just how bad the entire situation really is.
Over the weekend this blog received many comments from LiPs and would be litigants, who simply haven’t a clue about their legal position at all. They were desperately seeking advice in trying to conduct their own cases through the courts, and frankly making a mess of it for the most part – hence the request for advice. Worse still, some of their problems are of the most serious that can arise in family law.
Would you for example, as a grandparent with grandchildren in care, want to be left writing to a stranger such as myself to try and understand what you can and can’t do about stopping their adoption, and getting them to come and live with you? Grandparents can make applications to the court, but often don’t because they’re unaware of their rights. They are outside the scope of the present legal aid system (or so they think) and don’t know where to turn or what to do.
I received quite a few of these desperate messages and noted that This Morning’s website has received several similar comments following the programme. Sadly, they shared exactly the same tone of desperation.
It is all so different from when I would regularly attend the local magistrates’ and county courts. The process was faster and there was more legal aid available, so far more people and cases did get sorted out. That’s my recollection anyway. And most of them used to be resolved through a sensible conversation over coffee. If clients are willing to take advice, a case can be settled without the need for lengthy pre-hearings and reams of forms.
Now the procedure feels like it is never ending and legal aid seems to be a thing of the past. So what’s the result?
Courts clogged up with LiPs who have a court available to them, and a judge to boot – all for the cost of their court fee. Why not make full use of it? Assuming of course that you know you can. Even if you don’t, and go down the wrong route or want to argue forever about relatively little, you may end up with an illustrious judge helping you through the process – as Mr Justice Mostyn recently did with a lottery winning wife. A high court judge who might otherwise be dealing with a serious care case that will have to be delayed, is instead guiding an LiP through the court process.
Often the uncertainty LiPs have of their legal position only leads to more litigation. They don’t know when to negotiate or accept a deal, and feel they can only follow the court process to its natural conclusion.
So how on earth has our proud legal system descended into such a hideous mess?
Last week Law Society Chief Executive Desmond Hudson said while waiting for the government’s response to the Family Justice Review that:
“Children are at the heart of family justice and their welfare must remain paramount.
“Delays in care cases amount to a national disgrace – children most in need of society’s care are being failed. The recommendations in the Norgrove Review could contribute significantly to reducing these delays, if properly funded and implemented.
“The government’s response will be critical in ensuring that a balance is struck between improving efficiency in the courts, while ensuring that this is not at the expense of the welfare of children.
“Change will require commitment from everyone – judges, lawyers, social workers and the court service – and particularly from the government, because change must be resourced.
“The government response will come at a difficult time for the family justice system. Cuts in legal aid fees will mean fewer family lawyers available to help people; cuts in legal aid eligibility will mean more people going to court unrepresented, taking up huge amounts of court time, just when court staff and facilities are being cut dramatically – all leading towards more, not less, delay. This has the makings of a perfect storm.
“The government needs to ensure that ambitious and necessary reforms are given the time and resources that they deserve.”
Notice the repetition in various formats of that keyword funding?
Funding is the key, because no matter what the government ultimately decides to do – whether it be giving more rights to parents and grandparents or throwing more money at mediation – the parties are still likely to end up in court. The government might decide to set up a separate tribunal system to remove them from court, but it won’t be easy because there are no strict formulae to apply to private law child disputes. No, it is the courtroom that looks likely to be the end game in the majority of cases.
So i’m back on my soapbox, this time firmly standing up for lawyers who undertake legal aid cases. And this is my message to government:
Don’t keep cutting the legal aid budget and throwing resources at toothless mediation sessions, “information gathering sessions”, “hubs” and all the other suggestions in the Norgrove Report. Instead why not try a proven way forward? Keep cases which belong in court, in court. Improve the legal aid budget and make the system friendlier, more accessible and easier for potential clients. And why not start to encourage confidence in solicitors to give best advice under the legal aid scheme?
Don’t try and run legal aid on a shoe string, while throwing lots of money at mediation – something clients don’t like or want. Keep each case more tightly contained – don’t let the budget run away, but maintain more control of overall costs. That way legal aid lawyers will receive more instructions and will encourage their clients to settle more cases (as it won’t make commercial sense to string them out), thus removing the log jam in the courts.
All but the most complicated residence and contact cases should be put in front of a magistrate, with only the right cases progressing to county court. And block contracts should be offered to legal aid lawyers, ensuring that they are again encouraged to settle cases quickly.
Despite the current government’s debt woes, I believe it makes sense to spend money in the right areas. Alternatives to the court system are unlikely to work, as the muted response to compulsory mediation in the earliest stages of family cases has shown.
But until a change is made for the better, if you need legal advice please keep writing to me with your queries. Keep tuning into my Q&A forums, which I intend to run once a month to provide free advice. I am going to keep helping people who need legal advice and can’t afford a solicitor, but overall I’m only too aware that writing to me is like trying to cover an open wound with a plaster. Yes I can try and provide a little bit of cover, but overall, I can’t do much more.
It’s time for the government to stand back and use a bit of good old Yorkshire common sense: you can’t permanently remove these cases from the justice system, but you can make it quicker and easier to find justice. To do so you will need the help of legal aid lawyers – it is as simple and straightforward as that.