Having access to justice is undoubtedly a crucial feature of a fair judicial system. However, cuts to legal aid have resulted in people being denied their equal right to justice.
It has become increasingly evident that within the family law sector vulnerable people are left feeling that the legal system has failed them. They are being left without representation for the simple fact that their resources will not allow it. As a result, disadvantageous financial settlements are entered into, contact with children is lost, and ultimately people are being left without recourse.
In April 2013, an abundance of family matters were removed from the scope of legal aid. Private family law matters are outside the ambit of legal aid if it cannot be proven that domestic violence has occurred within the last two years. This fact brings with it a host of problems, and has led to engrained and lengthy court cases. There is no alternative but for people to represent themselves as litigants in person.
Despite the aim of the cuts being to save money, reports have shown that more money is being spent on court cases. The majority of people who represent themselves have little or no understanding of the family courts procedure. They are simply not au fait with the legal jargon and thus require substantial amounts of help from the Courts to see their case through. It goes without saying that our legal system should not be one where only those who can afford it, are given access to it.
Reports have shown that there are serious disadvantages of representing one’s self through financial proceedings; the parties are essentially pitted against one another. The procedure rules followed by family lawyers are geared towards cases being handled justly and expeditiously. However, these rules are not followed by litigants in person and the unfortunate result is that the Court is not being saved time or money.
Legal representatives often encourage clients to seek mediation, and to agree arrangements between themselves to avoid the costs and stress that inevitably come with court proceedings. It is therefore not surprising that following the cuts, there was a 56 per cent drop in cases using mediation in 2013-14 compared to the previous years. Solicitors’ guidance clearly helped cases to settle without the need for judicial intervention. However, the reality now is that the cuts have resulted in a rise of contested cases which cause more distress in Court.
Children have also faced a huge impact because of the cuts. They are being denied their fundamental right to have access to both parents. The irony in this is that the starting point in many children cases is that, seeing both parents is most beneficial for the child. In contact disputes, those who cannot afford to instruct a solicitor and do not have the ability to engage in the proceedings themselves simply end up doing nothing at all which results in the children suffering. Indeed, the cases continue to increase where both parents are desperately trying to represent them. Nicholas Lavender QC stated that “if these parents cannot represent themselves effectively … it becomes difficult for the Court to do justice”.
The situation that we are now facing, was summarised perfectly Harry Fletcher, an adviser to NAPO. He stated:
“The savage cuts to legal aid have had a disastrous impact on the judicial system … women and men are having to represent themselves, abused individuals are being cross examined by their alleged abusers, and vulnerable children are suffering. The family Courts system is facing meltdown.”
It has recently been reported that the Justice Minister has stated that Judges should keep out of the legal aid debate. However, Judges are left in a catch 22 situation; they must respect the separation of powers embedded in our constitution which calls for the independence of the judiciary but also bear in mind that they are the arbitrators of justice.
The complexity of the situation was summarised by Sir Justice Munby, President of the Family Division:
“Of course legal aid is a matter of political decision. It is a matter of public policy – an area in which Judges can tread only with great care. Where we can tread and I don’t shrink from this is if it is impacting on the fairness of the proceedings in front of us it is our duty to make sure the proceedings in front of us are fair. If that requires representation we must say so and if the absence of representation means the proceedings are not fair and because they are not fair are potentially prejudicial to the interests of children then we must say so.”
With the overwhelming amount of reports that evidence access to justice being denied to families, alternate dispute resolution diminishing, and increased stress on the Courts, it can be suggested that the Ministry has not “considered the impact of the changes upon the wider system when implementing the reforms”.
Furthermore, it is time, as Chair of Families Need Fathers Jerry Karlin stated , that “the Government should sit up and take notice of the concerns expressed by Sir Justice Munby”.