Access to justice by way of a fair trial is being severely restricted by the rising number of estranged couples representing themselves in family court disputes because of inadequate provisions to legal aid.
A senior family court judge has condemned the provisions available to the Legal Aid Association after an illiterate mother of four, who suffers from poor sight and hearing, was forced to represent herself in a court hearing over the custody of her children.
Judge Louise Hallam, in an uncharacteristic commentary by the judiciary, warned that the woman was not given the opportunity of a fair trial and that she believes others in the same position will also be let down.
In the case the woman, who cannot be named for legal reasons, was said to have hearing, speech and learning difficulties and whose former husband was granted assistance with his legal fess because the local authority supported his case for custody.
Hallam said that the mother’s case for custody needed to be heard, adding: “Without legal aid … the mother, on her own, would be facing two advocates pursuing a case against her. On any basis that cannot be equality of arms … She is the party with the least ability, the greatest vulnerability and she should have had the benefit of legal representation.”
Unfortunately, this particular case is not an isolated incident. Cuts were imposed on the Legal Aid budget by the Ministry of Justice in April 2013, removed a wide scope of matters including debt advice where an individual is not at immediate risk of homelessness; education matters unrelated to special needs education; welfare benefits and private family law matters where no domestic violence can be proven to have taken place in the last two years. Couples disputing access and custody of their children now mostly have to represent themselves in court, with commenters claiming this causes lengthy delays in determining the best outcome for the children. Additionally, commenters have drawn attention to the problems faced by men and woman with literacy problems when attempting to negotiate complex legal process with representation.
Ministry of Justice figures show that in the first nine months since the cuts became effective, just over 50,400 of the 88,300 parents involved in family court cases relating to children in England and Wales had no legal representation – almost six out of ten.
Napo, the trade union representing family court staff, found a large rise in the number of cases where neither party had a solicitor acting for them, so were representing themselves as litigants-in-person. Additionally, the organisation claims that they were now ten times more likely to see two parents fighting for custody without legal representation than they were to see both with a solicitor.
Lawyers’ representatives offer that the use of solicitors in family courts generally led more clients to seek mediation at the behest of their council. As more parties are pitted against one another more cases are contested and the courts become fuller and slower.
There are several elements to the claim that the cuts to the Legal Aid budget has led to the impotence of the justice system in some cases: inability of vulnerable parties to representation; lack of evidential tests being commissioned due to their expense and slow and ineffective court proceedings are to name a few. The Legal Aid Association has pledged to review cases where these elements have had an effect but this approach may be an attempt to plug one hole after another in a dam that is fit to burst.
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