Magistrates complain of ‘impossible two tier system’

Family Law|June 2nd 2014

Magistrates have complained of an increasing inequality in the court system between those who have legal representation and those who do not.

A sample of 461 magistrates across the UK were polled in a survey conducted by the Independent on Sunday and the Bureau of Investigative Journalism.

A decisive 97 per cent of the magistrates said unrepresented litigants in person had had a negative effect on the work of the courts. And close to two thirds, said they thought this was the case most or all of the time.

According to the poll, 46 per cent of the people appearing in magistrates courts now have no legal representation.

One magistrate highlighted delays and unfairness  in the current system, in which only one party in court case may have legal representation. He told the researchers:

“We and our legal adviser do our best, but time is not on our side. An impossible two-tier system has been created, between those that have [legal advice] and those that don’t.’

Another declared:

“In family [courts], if one side is represented and the other not, it makes it very difficult to have a fair hearing, as litigants in person find it difficult to cross-examine and don’t understand the process.”

Steve Matthews is chair of the Magistrates’ Association’s Family Courts Committee. He said:

“Savings in legal aid costs on family cases disadvantages those people unable to afford lawyers, and risks injustice for children. It is evident to every family magistrate that the rise in litigants in person in private-law children cases is having a profound effect on the effectiveness of court operations. This is echoed by all other family judges.”

His sentiments were echoed by Bill Waddington, who is chair of the .Criminal Law Solicitors’ Association.“Family courts are an absolute disgrace. People are representing themselves, so cases that should take an hour take a day.”

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  1. Andrew says:

    The elephant is still in the room.

    A litigant who claims to be the victim of d.v. can get legal aid.

    The litigant alleged to have committed it cannot.

    Article 6, anybody?

    • Stitchedup says:

      Spot on Andrew. What makes it worst is that Magistrates and district judges are only too eager to believe any allegation of domestic abuse levelled at a man, will most definitely err on the side of caution when dishing out non-mols and restraining orders, and have no commonsensical approach to “reasonable excuse” when dealing with reported breaches. A result if Feminist political meddling with the justice system.

  2. Luke says:

    Andrew, that elephant has been in that room so long it has residency – nobody cares about that – this complaint is not primarily about fair representation as it has been unfair forever, as usual there are interested parties and it’s mainly about the money.

  3. Andrew says:

    The elephant has been around a long time, Luke, but it is only LASPO that gave it residency. It is only in cases of alleged DV that legal aid is given and only to the maker of the allegation – and the last bit is the elephant. Previously practice was patchy but I have acted for allegedly violent spouses and partners. One was a wife and you wouldn’t want to be on the wrong side of her if she was angry . . .

  4. John Bolch: Legal aid cuts have created a two-tier system, and mediation is not the answer - Marilyn Stowe Blog says:

    […] the weekend we had another reminder, as if one were needed, of the unfair two-tier family justice system that has been created as a result of the abolition last year of legal aid for most private law […]

  5. Luke says:

    As well as the example you mention, in the past was it not the case that Legal Aid was often given to one party and not the other – i.e. where one party and not the other falls below the threshold that gets Legal Aid – this is what I am talking about – where the person NOT on Legal Aid can be kept continually in court and “financially bled” until they concede.
    Nobody ever gave a **** about that.

    • paul apreda says:

      I’ve written previously in correspondence with John Bolch about LIPs. In Wales more than 60% of Private Law cases are heard by Magistrates. England will soon be catching up! What is needed is a support network / service for LIPs that incorporates training, ongoing legal advice and motivational support. We offer this in Wales through partnership with Law Works Cymru. What we need next is for the structures in the Family Justice system to recognise LIPs as part of the system rather than treat them as the ‘barbarians at the gate’

      • Stitchedup says:

        I wish I has known of Law Works Cymru. That said, you get a feeling that you’re on a hiding to nowhere when the judge engages in friendly chit chat with the barrister representing the ex, introduces the barrister to me as his “learned friend Mr Taylor”, explains to me that he is chancery counsel, and then said “you do realise this bloke does this for a living do you?” …. that was just the start.

  6. Skeptic says:

    Excellent comments both Andrew and Luke. It really shows up the intelligence or honesty of magistrates when they complain about something that has always existed.

    • Stitchedup says:

      Magistrates are a disaster both in the family and criminal courts, sitting before a district judge is no better. They are brainwashed and biased towards the police and the latest political thinking. I really see no place for them to determine guilt, at best they should only be used to handle court case that involve guilty pleas that have been made form the outset and not as a result of plea bargaining, intransigence or indeed bullying.

      • Paul Apreda says:

        Magistrates have heard more than 60% of family cases in Wales for the past few years. In London & SE England that has been around 6%. The Single Family Court will mean that England ‘catches up’ with Wales. What is needed is clarity of outcomes from the start rather than a blank piece of paper each time. Magistrates rely on professional advice and that’s why Cafcass & Cafcass Cymru become much more important in cases. We will be requiring Cafcass Cymru to evidence that they have complied with the UNCRC – esp Article 9 – when they write any report as this is a legal requirement of them under Wales only legislation. I’m sure that will have little impact but at least we can try.

  7. Mediation sees 38% drop in one year after legal aid cuts - Marilyn Stowe Blog says:

    […] cuts to legal aid resulted in a noticeable increase in people representing themselves in family disputes. With so many people going without legal representation, there are fewer people […]

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