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Litigants in person briefing: nothing new, but it does bear repeating

It is almost three years since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (unaffectionately known as ‘LASPO’) abolished legal aid for most private law family matters. I suspect that the government would have hoped that by now the furore over the awful effects of that legislation would have died down. Unfortunately for the lawmakers, it shows no sign of doing so.

The latest reminder of the implications of LASPO actually comes from within parliament. As I mentioned here last Friday, the House of Commons Library has published a briefing paper on the rise of the self-represented litigant in civil and family cases in England and Wales since LASPO was implemented. I have been having a closer look at the paper and, whilst it tells us nothing new, I do think that much of what it says bears repeating, even if I may have myself already referred to it here.

The briefing paper covers quite a bit of ground and I could not possibly cover all of it here. It begins with a quick look at what the Ministry of Justice expected to happen when the legal aid changes were implemented – basically they realised (obviously) that they would lead to an increase in the number of litigants in person (LiPs) but naively hoped that many of them would be able to settle their matters out of court, primarily through mediation. It then goes on to look at the actual figures for the increase in LiPs, in particular those from the National Audit Office: a 22 per cent increase in cases involving contact with children in which neither party was legally represented, a 30 per cent increase across all family court cases (including those that remain eligible for civil legal aid) in which neither party had legal representation and the fact that 80 per cent of all family court cases starting in the January–March quarter of 2013-14 had at least one party who did not have legal representation.

The paper also speaks of the experiences of LiPs, what support is available to them (woefully little, at least from the government) and the effects of increased numbers of LiPs in civil and family proceedings. Significantly, it also tells how the increased numbers of LiPs has driven up costs elsewhere, thereby eating into the very savings that LASPO was designed to create.

However, the most interesting section of the paper to me is where it looks at the characteristics of LiPs. The section is taken entirely from a study into the experiences and support needs of litigants in person in private family law cases that was published by the Ministry of Justice in November 2014, which found (amongst other things) that:

  • The major reason for appearing in person was inability to afford a lawyer; appearing in person was wholly or partially a matter of choice for only around one quarter of LiPs. So, as one would expect, most LiPs do want to have lawyers – is it fair that we have a system where money determines whether a litigant is represented?
  • Over half of the LiPs observed had had legal representation at some stage during the current proceeding and/or in previous family law proceedings. I suspect that this figure is decreasing.
  • Only a small minority of LiPs were able to represent themselves competently in all aspects of their family law proceedings. Even those with high levels of education or professional experience struggled with aspects of the legal process. This and the next two points are perhaps the most damning findings, demonstrating the harsh realities of lay people having to represent themselves.
  • The great majority of LiPs were procedurally (and, where relevant, legally) challenged in some way, with some having no real capacity to advocate for their or their children’s interests. So, it is not just the LiPs themselves who suffer, it is also the children – a point that I suspect the government overlooked when considering the implications of LASPO.
  • Around half of those observed had one or more vulnerabilities, making it more difficult for them to represent themselves and in some cases making it impossible. And it is also the vulnerable who suffer. So much for a caring society.
  • LiPs may create problems for the courts by not appearing, by refusing to engage with proceedings, or (less frequently) by behaving violently or aggressively. Apparent resistance to court proceedings (and violence and aggression) may often be related to litigants’ vulnerabilities. Protecting litigants from themselves is another often overlooked aspect of the job of a good legal representative.
  • Finally, LiPs were no more likely to bring unmeritorious and serial applications than represented parties, although having to respond to these applications was another vulnerability faced by some women LiPs. I have to say that I am slightly surprised that the study found that LiPs were no more likely to bring unmeritorious and serial applications than represented parties – that was certainly my experience whilst practising, and we have also seen it in the law reports.

All in all, the paper makes pretty depressing reading, even if none of it is new and most of it is in any event entirely predictable. LASPO has created a two-tier justice system: a superior one for the haves, and an inferior one for the have-nots. In doing so it has created enormous problems for the system, which is struggling to cope. And all for minimal benefits to the public purse.

You can download the briefing paper here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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