Supporting litigants in person

Family Law|December 2nd 2014

In my post here on Friday I referred to the two pieces of news last week which concerned litigants in person (‘LiPs’) in family cases: firstly, the Ministry of Justice report into their experiences and needs (more of which in a moment) and the ‘experimental statistics’ bulletin released by the Ministry analysing estimated hearing duration in private law cases in England and Wales. I have an admission regarding the latter: like others more eminent than me, I fell into the trap of thinking that the statistics referred to a reduction in actual hearing times since the abolition of legal aid, hence the headlines elsewhere to the effect that LiPs were not to blame for the delays in family courts.

I am grateful to Lucy Reed over at the Pink Tape blog for putting me right: the statistics related to the estimated times for hearings, calculated in advance of the hearings, not to the time that those hearings actually took. I did read the bulletin before writing my post here on Friday, but the penny didn’t drop – I suppose I had already made up my mind what the statistics were about based upon the headlines that I had read previously, despite the clue in the title of the bulletin that the hearing durations were ‘estimated’.

Anyhow, the upshot is that the statistics do not actually tell us anything at all about how well LiPs are doing in court.

The report, on the other hand, does, although it relates to the period prior to the abolition of legal aid, since when I suspect that the experiences of LiPs may have deteriorated somewhat. It seems obvious to me (and I’m sure, to many others) that the report should have been published and studied before the number of LiPs was hugely increased by the abolition of legal aid, and one can only speculate why the Ministry of Justice has sat on the report for so long.

Leaving that point aside, the report identifies that LiPs have considerable needs for support and makes various recommendations, including:

  • That all relevant family justice communications, including forms, leaflets, practice directions, templates and pro forma, are re-evaluated from the perspective of LiPs and (if necessary) redesigned with their various needs in mind.
  • That a single authoritative ‘official’ family court website is established with all the resources that a LiP needs in one place.
  • That judges are encouraged to give LIPs clear verbal instructions and guidance on process and procedure.
  • That the court service provides increased opportunity for face-to-face inquiries with relevant court staff and that guidelines and training for court staff are devised to facilitate information-giving whilst avoiding giving advice.
  • That there is a presumption that a single family member, friend or volunteer may accompany a LiP in court to offer emotional/moral support.
  • That consideration is given to the development of a code of conduct, practice guidance or regulatory framework for paid/’professional’ McKenzie Friends.
  • That initial legal advice to facilitate dispute resolution and, where necessary, for initial preparation for court proceedings is made universally available.
  • That measures are introduced to ensure greater availability of and access to exceptional case funding in private family law matters.
  • That a mechanism is introduced to enable judicial recommendation for the provision of publicly funded representation in the interests of justice.

All of which seem to me to be perfectly sensible and, as I indicated above, should have been implemented before legal aid was abolished. Of particular interest are the last three recommendations, which clearly envisage a continued role for family lawyers in cases where legal aid was previously available.

In short, as I’ve said here before, most of the effects of the legal aid cuts were entirely foreseeable, and yet it is not until some eighteen months later that recommendations to mitigate their impact are published. Of course, even if all of these recommendations are implemented, that is hardly going to level the playing field for the less well off in society facing court proceedings, compared to those who can afford proper representation.

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Comment(1)

  1. Andrew says:

    “That there is a presumption that a single family member, friend or volunteer may accompany a LiP in court to offer emotional/moral support.”

    No.

    Many people going through a divorce blame his mum or her sister or his brother for making things worse, rightly or wrongly. The presence of that person in the room can only make things worse.

    The same may be often be said of a close friend. A trained volunteer, not otherwise personally known to either party, yes; anyone else should need permission which should not be readily given if the other party knows the person proposed and says No.

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