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The chicken that is the government’s family justice policy is coming home to roost

Last week we were all subjected to the usual quarterly avalanche of statistics from the Ministry of Justice on all things to do with our courts system. These included Family Court statistics for April to June this year and legal aid statistics for the same period. They cannot have made happy reading for members of HM Government, and their policy of removing legal aid from most private law family matters.

The statistics told us many things, but I’m going to concentrate here on just three.

Firstly, the most obvious result of abolishing legal aid was of course that the courts would be faced with having to deal with far more litigants in person. It is therefore no surprise that the latest statistics show that in 34 per cent of cases in the family court neither the applicant nor respondent were represented. This proportion is at its highest since legal aid was abolished in 2013, showing that the increase is still continuing (the figure was around 17 per cent prior to the abolition of legal aid). Cases where both parties are represented has fallen from around 40 per cent to around 27 per cent.

The effect of the increase in litigants in person upon the operation of the courts must be immense, with judges having to spend huge amounts of their time having to explain basic procedure to the parties (no disrespect intended to them). The other side of the coin is that many of those litigants will have their cases less well prepared, meaning that their chances of success are diminished.

And what is the government doing about this problem? Well, on Friday last week the Law Society Gazette told us, in a piece with the headline “MoJ ‘spending millions’ to cope with LiPs”. The derisive roars of “I told you so!” from five thousand family lawyers were deafening. Now, I know that the amount the government is spending is a fraction of what it saved on legal aid, but the irony is clear for all to see.

What else did the government do to help those who were no longer eligible for legal aid? Well, its flagship policy was to promote mediation as a means of resolving family disputes, thereby avoiding the need to go to court at all. So, how is this policy doing? The legal aid statistics tell us. They show that the number of mediation assessments in the quarter was 12 per cent down compared to the same period in 2015 (continuing the trend shown in the previous quarter), and currently stand at around half of the level prior to the abolition of legal aid. The number of mediation starts was down by 15 per cent over the same period. The policy of using mediation to ‘replace’ legal aid has been an utter failure.

But there is also another, perhaps less expected, effect of the legal aid cuts. The Family Court statistics also showed us that there was a ten per cent rise in the number of cases heard in the family courts during the quarter, compared to the same period last year. As Marilyn Stowe commented on Twitter, this is what happens when you remove legal aid. What the government failed to realise in its contempt for family lawyers is that they are actually very good at getting cases settled without going to court (I used to consider it my duty to my client to try to protect them from the stress and expense of contested court proceedings). Without lawyers fewer cases are settling, and more cases are going to court, putting yet more pressure on the system.

So there we are: more litigants in person, fewer mediations and more cases going to court. The chicken that is the government’s disastrous family justice policy is really coming home to roost.

You can read the Family Court statistics here and the legal aid statistics here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. Nick Langford says:

    It is very easy to forget that there were problems before LASPO. Generous levels of legal aid were blamed for encouraging litigation rather than settlement (Parental Separation: Children’s Needs and Parents’ Responsibilities).

    Legal aid was also blamed for an increase in the number of lawyers between 2000 and 2010 of 42.4%; local authorities had increased their use of lawyers by 70% since 1997; lawyers outnumbered police officers by 22,000. It was believed in some quarters that a cull was due.
    The Government also had figures that the average cost of a mediated case was £535, compared with £2,823 for a non-mediated one. Only 12.7% of cases had used mediation, however, and the Government believed that solicitors were not referring their clients to mediation (whereas we know now with hindsight that the opposite was true). Edward Leigh, who chaired the Commons Public Accounts Committee had received a report showing lawyers had overclaimed legal aid by £18.3 million and urged a crackdown on fat-cat lawyers who were “cashing in by keeping quiet” about mediation.

    There were also studies showing the benefits of mediation, particularly of all issues mediation.
    It is easy to see why the Government believed lawyers were the problem and why mediation could be the solution, while also saving millions in expenditure. The Government also ignored its own figures which showed only a modest likely increase in the take up of mediation, on the grounds that most cases which could benefit from mediation were already using it.

    In fairness to the lawyers, they predicted the result very accurately; for example, Peter Lodder, Chairman of the Bar Council predicted large increases in the number of litigants in person, an increase in delay, and an increase in the number of cases due to a rise in false allegations,

    “Our fear is that there is going to be an enormous increase of this sort of allegation… What is particularly unfortunate is that children are often going to be involved. That is going to lead to the whole panoply of them being interviewed by social workers and so on because it is very difficult to dismiss such allegations out of hand, even if they appear totally unfounded.”

    • JamesB says:

      I think you point is that lawyers need to look in the mirror for the cause of the current situation, and I think I agree with you, although I do not know what a panoply is.

      It seems to me that the establishment (in that I include lawyers) have been writing too many dodgy laws for their own rather than societies benefit, and that chicken is indeed coming home to roost.

      There is perhaps a common ground and good future to look forward to and a way out (even the Americans are learning it is better to give your enemies an ‘out’), and that is the lost funds that fat cat lawyers enjoyed with warring couples can be partially made up with introduction of pre nups.

      Professions can come and go though and I think more policemen than lawyers is preferable and speaking as someone who has been there I do not think lawyers should be exempt from the doll queue they should be part of society and the whole ruling elite great unwashed masses thing should be a thing of the past, we are part of a classless society and the (now very well educated) ‘peasants’ are revolting and demanding better representation than the nonsense of the past.

      • JamesB says:

        I think your point is that lawyers need to look in the mirror for the cause of the current situation, and I think I agree with you.

        Thick fingers today.

  2. JamesB says:

    Now off to look up panoply.

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