We may not know who first said it, but it has been repeated often enough since they did: “There are three kinds of lies: lies, damned lies, and statistics.” The point, of course, is that statistics can be used (or perhaps it should be ‘abused’) to support arguments that would otherwise be weak or even untenable. Sometimes, this can be done quite blatantly, and sometimes it can be as a result of taking a particular position and then expecting the statistics to support that position, even if they actually don’t.
Take, for example, the subject of this post, which is the effects of the cuts to family legal aid that were implemented on the 1st of April 2013. Now, like most family lawyers, I was against those cuts and believed that they would have a serious adverse effect upon the family justice system, so naturally I would expect that any family court statistics published since confirm that that had been the case. That, of course, is a trap that one must not fall into, and in what follows therefore I will try to be completely objective in looking at just what the latest Family Court Statistics Quarterly tells us about representation in family cases.
The quarterly, for the period April to June 2015, was published by the Ministry of Justice last week. It includes some twenty tables of statistics, but here I am going to concentrate upon just one, which gives details of family case types and whether one or both of the parties were represented (Table 6). What it tells us is that whilst some things most definitely have changed since the cuts, other things remain (about) the same.
The headline-grabbing point of these particular statistics was that in only 22 per cent of private law children cases were both parties legally represented – the lowest recorded percentage. This, of course, is part of the downward trend in representation since the cuts – something that was obviously going to happen. To look a little more deeply, prior to the cuts in roughly half of all private law cases both parties were represented. Now the figure seems to be stabilising at more like one quarter of all cases.
As for cases involving financial remedies, by my calculation in 2011 in 54 per cent of cases both parties were represented, whereas in the quarter April to June 2015 that was down to 44 per cent (admittedly of a much smaller sample). In other words, representation has been holding up much better for financial remedies cases than for children cases. I suppose this makes sense: if parties are going to be fighting over financial matters, that must mean that they have some finances worth fighting for, hence relatively more can afford representation. It does, however, say something about our system if it appears to value finances more than children.
Returning to private law children cases, the corollary of the above is that since the cuts the percentage of cases in which neither party was represented has jumped from about ten per cent to about thirty per cent. Again, this is obviously to be expected, although the total number of applications has fallen by about a quarter since the cuts, so the actual number of cases where neither party is represented hasn’t trebled – it is more like double what it was. Still, that is quite bad enough.
Moving on, the statistics show that since the cuts there has actually been a small increase in the proportion of private law children cases where just the applicant was represented (although a reduction in real numbers). Quite what this tells us, I’m not sure. Perhaps parents are more reluctant to issue proceedings without representation? If so, that would be understandable, but quite worrying that resolving a children dispute depends upon whether a parent can afford representation. Another possibility is that the fact that legal aid is still available for domestic violence might skew the figures a little, with more applicants being domestic violence victims.
One thing that hasn’t changed since the cuts is the percentage of private law children cases in which only the respondent is represented. The figure has remained at about ten per cent throughout. At first glance this seemed a little unexpected to me – you would have thought that the number would drop, in a similar way to the number for cases where both parties are represented. However, perhaps these were never legal aid cases in the first place, with neither party being financially eligible for legal aid.
Finally, and interestingly, the statistics indicate that cases where both parties or the respondent only had legal representation took longer than those cases where only the applicant was represented or where both parties were without legal representation. I suppose this may be seized upon by some as evidence that lawyers slow things down, although it could also be evidence that litigants in person miss things of importance.
So the statistics tell us some things that were expected, and some that were not. Some things have changed, and some things have not. What they don’t, however, tell us anything about is the difficulties faced by litigants without legal representation, or indeed the difficulties faced by the courts having to deal with cases without lawyers.
The Family Court Statistics Quarterly and tables can be found here.