Back to basics: how I think we can help our stretched courts

Family Law | 6 Feb 2012 6

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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.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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Comments(6)

  1. ObiterJ says:

    Wow – Yorkshire Common Sense (YCS) !! Absolutely right.

    “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.”

    Many cases were sorted out, as it were, in the shadow of the court. With each party represented by a lawyer, it was possible to sit down, agree a deal, put it to the Magistrates (in FPC) and then either proceed by agreement or with a court order. As I recall, most magistrates were more than happy to allow time for “profitable discussions.”

    A tribunal could be set up but the reality would be that this would be little different to the present courts.

    Mediation is useful in the right circumstances. However, even that has to be funded and will not necessarily prove to be cheaper than a short hearing before the magistrates. Also, I would worry about mediation where 3rd parties (e.g. grandparents or other possible carers) are involved.

    I suspect that, with a bit of YCS, we could usefully cut India’s overseas aid by (say) 50% and have about £500m to apply to other useful things. There would be a fight for the money of course but children cases ought to be a high priority. Our children are now being let down absymally and one can only fear for the future of our country.

  2. DT says:

    I love soapboxes and have an ever increasing and varied collection. What’s more, you don’t need to be particularly polemic to reach for one when it comes to this divisive matter.

    I possess neither your expertise nor experience Marilyn, however, I (like many others), care passionately about family law, access to justice and access to legal aid and legal aid solicitors.

    I too am concerned about LiPs and all the associated issues you have raised for individuals and the courts in-light of the steady increase in numbers; however, I am especially concerned about people who could not go to court and, like LiPs, ‘have a go’; people with learning disabilities or mental health issues who would be terrified at the thought of standing up in front of a ‘posh judge’ and being afraid that they wouldn’t understand what he/she was saying.

    This is a very real problem for sections of our society, especially in socially and economically deprived areas. Moreover, the way public funding has declined, the issue is only likely to deteriorate further.

    When the concept of a fairer society was being mooted in a post WWII age, (e.g. the NHS and accessible legal advice to name but a few areas), nobody could have anticipated the changes over time, which would shape and impact out lives, health and the legal system.

    The beleaguered NHS continues to grapple with ever more costly medications and medical advancements. Despite budgets receiving a regular trimming, individuals are not prevented from accessing their GP or a hospital consultant based upon their access to funds.

    My second all time favourite piece of legislation is the ‘Legal Advice Act 1949’ because it is all very well having great laws in a great democracy, however if they are inaccessible to all but ‘the rich’, (a relative term), then they’re more ornamental than functional.

    Obviously, this piece of legislation has morphed over time, however, it still raises an important point: what good are laws if so many people are being denied true access because they can’t afford a solicitor and are struggling alone through the legal labyrinth they find themselves in? The court system becomes the Minotaur and they either give up, fail or don’t do as well as they might have.

    It appears that while the law is progressing, there is an ever-decreasingly accessible infrastructure to guide people through the process.

    I am pro enterprise and capitalism, however when I read via a Public Accounts Committee report that HMRC has “failed to collect” £25 billion in big firm’s taxes, I can’t help thinking about the productive ways in which that vast sum could have been utilised. To give this figure some context, £25bn is seemingly equivalent to £1,000 for every family in the country, or equal to 6p being cut from the basic rate of income tax. Holy Moly!

    I believe that e-petitions are a great and relatively simple vehicle to raise the profiles of important issues. Perhaps one could be considered here.

    DT

  3. Yvie says:

    I am not too sure about the effectiveness of mediation in some cases. For instance what if one parent is seeking 50/50 shared residence and the other parent wishes to reduce the residence. When one parent can only attend mediation in the school holidays, it makes for a long drawn out process with a very probable stalemate at the end of it all. I wouldn’t have thought this would be helpful for the children.

  4. JamesB says:

    Just wanted to say as a taxpayer, I don’t want my tax spent on this.

    Government should stay the hell out of families, that’s what created the mess in the first place (Government family law ‘reform’).

    The more reform they do, the worse it gets. Best solution and my advice to Government is do nothing on this. Spent your energies more effectively on sorting out the economy instead.

  5. DT says:

    James

    Like it or not, Governments will remain involved in families in some shape or form, (at least for the foreseeable future), and so whilst ever they do, let’s make the best of what we have and ensure that we get the best possible outcome. Let’s ask more of them.

  6. Ian Downing says:

    If courts are stretched, surely the best help is to try to avoid them dealing with anything other than cases that cannot be resolved in any other way? Children issues are about child welfare, as the law recognises, and very little about “legal issues” other than how the law guides the court to address children’s best interests.
    Whether it is by mediation, collaborative law, or counselling, ideally families should be kept out of courts.
    If it is the case that “the courtroom looks likely to be the end game in the majority of cases” then we have a flawed system for addressing such issues. Addressing that does, of course, require the Government to spend money that it doesn’t want to spend.
    Where cases have to go through the court, again they need proper care and assistance, and cutting funding only makes the process longer and even less satisfactory. LiPs are often confused, and then they become understandably angry, and so the situation becomes worse, reducing the prospects of any satisfactory outcome for the family.

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