Private Law – one swing and a roundabout

The downturn in private law applications is definitely starting to look like a trend. Another month of figures lower than the same time last year (9%). And take a look at the table here [missing link added] – there is clear blue water between that red line (this year) and any other year shown.

On the plus side, the Gudanaviciene JR has been upheld. This was a batch of immigration cases, but the key point for our purposes is that the Lord Chancellor’s guidance on s10 LASPO has been held to be unlawful. As reported in the Telegraph, the Ministry remains unrepentant, saying through a spokesperson that “We continue to believe that the exceptional funding scheme is functioning as intended. Its purpose is to provide funding where it is legally needed.”

The big experiment

The Litigants in person in private family law cases research study (Trinder, Hunter et al) was published by the MoJ on 27 November 2014. It is a 234 page long report analysing the findings of a multi-stranded and significant piece of research around the experience of litigants in person in the period immediately prior to LASPO implementation. It has been long awaited (LASPO having been implemented some 18 months ago). It has been widely reported as having been “sat upon” or “Awaiting quality assurance” depending on perspectives (see here and here) and even as recently as 19 November the MoJ was saying no date was set for its publication. However, by 27 November it was published. There was no accompanying press release.

The ad hoc statistical release Experimental statistics: analysis of estimated hearing duration in Private Law cases, England and Wales was published the same day. It is a 13 page document including contact details. The preceding day the MoJ press office issued a notice of intention to publish in respect of the Experimental statistics.

Also on 27 November 2014 the Minister announced in the House the publication of the Government’s response to the Transforming Legal Aid : Crime Duty Contracts Consultation. This was always going to be a bigger legal news story.

The Government has of course been recently criticised for holding back unhelpful research or reports on a range of topics (such as immigration). And there has been a recent spate of instances of widely reported judicial concern at the difficulties faced by and caused by litigants in person (for example here). Also, the National Audit office published a report on 20 November which also raised concerns about the economic effects of LASPO.

The Gazette reported the experimental stats under the headline “Cuts have had ‘no significant impact’ on hearing times”. Jordans reported the experimental stats thusly : LiPs not to blame for delays in family courts.

I’m sure there are also news reports relating to the Trinder research but I can’t find them. This is hardly surprising in the circumstances. Far easier to read the first few pages of the bitesize research release that has been flagged by the Press Office than to actually read all the caveats or to find, read and digest the silently published 234 page behemoth. The MoJ does have a bit of a history of issueing “ad hoc” statistical releases at convenient moments, usually resulting in inaccurate headlines about Fat Cat legal aid lawyers, and sometimes resulting in rebukes for inappropriate use of statistics.

Notwithstanding the headlines in the legal press the “experimental stats” neither assert nor evidence the sorts of propositions in the headlines. To save you the trouble of actually reading a whole 13 pages let me precis the precis for you. This study is not a study of how long hearings take (notwithstanding its title). It is based upon recorded time estimates logged by courts in advance of hearings. That is to say, how long they were allocated. This is NOT the judge’s estimate after the event of roughly how long each case actually took. This is not even a specific estimate of how long a judge with an understanding of the specifics of the case thought they might take at the point when it was listed. It is a standardised allocation of time based upon the broad category of case and type of hearing, which can be altered from the “standard” time estimate if a particular feature warrants it. For first hearings the “standard” time estimate in many types of case is now double the length allocated pre-LASPO to cater for LiPS. And this will apply regardless of whether the case involves 0,1 or 2 litigants in person, because at the outset the court doesn’t know how many LiPs it will get. And as anyone who has ever been to the Family Court will know the time estimate usually goes out of window once you are at court. So let’s be clear. The time estimate before a hearing is in no sense an indicator of how long a hearing takes. Or of how much time is spent at court (as opposed to in court). Or of how much additional time is spent by lawyers either dealing with LiPs in order to reduce actual judicial time or waiting behind a list full of LiPs who are being dealt with at length by the judge. It isn’t really an indication of anything very much. The experimental data also looks at number of hearings, but since there is a general trend towards fewer hearings there isn’t really much that can usefully be drawn from the stats available. So basically they don’t tell us much at all. And the only experimental aspect of this appears to be in testing whether anyone would read past the summary. Hypothesis proven then. *Sigh*.

The Trinder research however, does tell us quite a lot. Of course I am skipping over lots of nuance when I summarise here, but : It tells us that there is wide variability in the capacity of litigants in person, and in the approaches of lawyers and judges. It tells us that apart from a small cohort of pretty competent LiPs who can manage things ok, it takes a proactive judge or a helpful lawyer to make things work reasonably smoothly and fairly for a LiP. It tells us that McKenzie friends can be really helpful – or really NOT helpful. And it tells us that LiPs are every bit as bewildered as we thought they were, even those who are educated or “high flying” and who we might assume are well equipped to manage, and that they asking for more guidance to help them navigate. Further, it tells us that there is a rump of Litigants who will always need lawyers and it recommends that initial legal advice to facilitate dispute resolution and, where necessary, for initial preparation for court proceedings is made universally available. Starting to see why it might have been left to gather dust on a shelf in Petty France somewhere?

So, far from the “LiPs not to blame for delays in family courts” nonsense (presumably it is those pesky lawyers and judges creating the delays with their whining about human rights and access to justice) – there is a real issue to be tackled here. And it isn’t as straightforward as telling the judges to crack on and crack heads. Because from a human resources point of view not all judges will have the aptitude for this new sort of “sleeves rolled up” judging, and frankly none of them yet have sufficient training for it. And nor is there sufficient judicial resource or court time to do this day in day out. There is lots of talk about how other jurisdictions manage without lawyers – but if we were moving to a new model of family justice what happens whilst we work our way from A to B? Families going through the Family Court today are coming to a court that is still dependent on lawyers but which has fewer of them to service the model. We’ve had the deckchairs on the Titanic analogy before. Let me give you a slightly different one : LASPO was like chucking the passengers off the sinking ship before inflating the lifeboats. That’s a pretty big experiment in sink or swim, and the Trinder research seems to be telling us a lot are not waving but drowning, however you rearrange the statistical deckchairs.

I wonder if it is a side effect of the delayed publication that the report recommends (at page 109) that “a range of YouTube videos demonstrating what a courtroom looks like, where to sit, how to address the judge, etc. would also be useful for some, although would need to be clearly signposted in information literature and on the website”, when in fact videos doing exactly that have been available since May of this year (mine – search “nofamilylawyer” on youtube). In truth, the MoJ published videos attempting to do this some time in 2013 but – well let’s just say they inspired me to make my own. And it appears that the researchers either did not find them or did not think they fitted the bill.

One thing I noted as absent from the report was that although the authors note a greater financial burden may be placed upon the privately paying opponent of a LiP as their lawyer is given greater responsibility, nowhere was it noted that in publicly funded cases the lawyer is simply expected to absorb ever more work for absolutely the same fee (See my Thin Gravy post here). There is a real risk that people will stop doing publicly funded private children work for victims of domestic violence or abuse (as they did with money work) because it is uneconomic.

Anyway, we shall see how it all pans out. The great Justice experiment continues…

Lord Chancellor’s LASPO Guidance is Unlawful

Because it’s an immigration decision this little gem may have passed you by. It is a bit of a recipe for a hurty head, but it is an essential read for anyone with a case involving a litigant in person in a sticky situation who may need to go down the route of exceptional legal aid.

Gudanaviciene & Ors v Director of Legal Aid Casework & Anor [2014] EWHC 1840 (Admin) (13 June 2014) can be found on BAILLI.

I’m going to pick out the bits which are relevant to family cases –  there is a lot of dry stuff about the specifics of immigration that will make you go boss eyed so I’ll skip that. I’m also going to intentionally summarise, so I do not promise precision accuracy. The important bit to note is that these were cases which were dealt with on the basis of a potential breach of article 8 ECHR NOT article 6 ECHR (because article 6 does not apply to immigration cases). In most family cases there will also (obviously) be a potential article 8 issue, and there may also be an article 6 issue too, particularly in cases of a quasi criminal nature.

Next. Exceptional in this context (i.e. s10 LASPO) doesn’t mean “rare” or “really almost never” or whatever other vanishingly improbable description you care to conjure up. It just means that such cases are an exception to the limitations on scope provided for in other parts of LASPO. So. When the guidance says “Rather, section 10(3)(b) should be used in those rare cases where it cannot be said with certainty whether the failure to fund would amount to a breach of the rights set out at section 10(3)(a) but the risk of breach is so substantial that it is nevertheless appropriate to fund in all the circumstances of the case.” it’s wrong.

The question in the case was what sort of risk of breach of material rights did there need to be for an applicant to fall within s10 LASPO?

The guidance says that “Caseworkers will need to consider, in particular, whether it is necessary to grant funding in order to avoid a breach of an applicant’s rights under Article 6(1) ECHR. As set below, the threshold for such a breach is very high.” and the question that caseworkers are directed to ask is “will withholding of legal aid make assertion of the claim practically impossible or lead to an obvious unfairness in the proceedings?”

Paragraph 12 of the judgment is a helpful precis, resonating strongly with family cases:

The guidance sets out various matters which should be taken into account in judging the importance or seriousness of what is at stake both for the applicant and more generally. Factual, legal or procedural complexity is material. Relevant considerations explicitly referred to include whether the degree of emotional involvement that the applicant is likely to have is incompatible with the degree of objectivity expected of advocates in court. In practical terms that is highly likely to be the situation in most appeals by immigrants who wish to enter or remain. Whether the applicant has any relevant skills or experience is a material consideration. Again, in all but a very small fraction of cases an applicant will lack skills and experience. On the other side of the coin, the court’s or tribunal’s familiarity with having to deal with litigants in person is material. In addition, the ability of an applicant to understand English and any disabilities he may suffer are material. If the applicant lacks capacity within the meaning of the Mental Capacity Act 2005, the caseworker must consider how capable his litigation friend is to present his case.

The test of practical impossibility or obvious unfairness set out in the Guidance derives from a decision of the European Commission of Human Rights in X v UK (1984) 6 EHRR 136. To cut a long judgment short, Collins J rehearses all the relevant authorities on this topic, and concludes that the test in X v UK, and accordingly in the Guidance, is too high. X v UK is inconsistent with other more persuasive authorities like Airey v Ireland, Steel & Morris v UK (2005) 41 EHRR 22,  and W v UK (1988) 10 EHRR 29 which, significantly, is a family law authority.

Collins J says (pa 22)

“The court cited a passage from W v UK (1988) 10 EHRR 29, another case concerning restriction and termination of rights of access by a parent to his child. The law then in force provided no statutory remedy whereby the applicant could contest the isolated issue of the decision to restrict or terminate his access to his child, save by judicial review which did not give an appeal on fact. In Paragraph 62 (p.119) the court stated:-

“It is true that Article 8 contains no explicit procedural requirements, but this is not conclusive of the matter … [.] the court is entitled to have regard to [the decision making] process to determine whether it has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by Article 8.”

There is no reference to X v UK and the test is fairness and whether, as the court observes in Paragraph 64, “The parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests.”

The parallels with private law proceedings where it is said that an unrepresented father’s relationship with his child should effectively be severed are obvious.

Other authorities considered are AK & L v Croatia (Application No: 37965/11) (2013), again family authority. Pa 24 of the judgment in Gudanaviciene says:
“The ECtHR has more recently confirmed the need to recognise that Article 8 has its procedural requirements. The case in question is AK & L v Croatia (Application No: 37965/11), judgment having been given on 8 January 2013 and became final on 8 April 2013. The case concerned the divesting of the applicant AK of her parental rights in respect of her son L. In Paragraph 63 the court recognised that the views of a child’s natural parents must be available to the authority which makes the relevant decision and any court to which an appeal lies. This means, the court said:-

“The decision-making process must … be such as to ensure that their views and interests are made known to, and duly considered by, the local authority and that they are able to exercise in due time any remedies available to them.”

The applicant AK had a mild mental disability, a speech impediment and a limited vocabulary. Thus her interests were not adequately protected since she had been required to appear unrepresented in the proceedings which divested her of her parental rights. Having regard to the serious consequence to her right to family life, the failure to grant representation meant that there was a breach of Article 8 since the decision could not be regarded as necessary for the purposes of Article 8(2).”

The domestic cases in which the X v UK test had been accepted were cases in which the point had not been argued.

Pa 28 is worth repeating in full:

“It seems to me to be clear that the key considerations are that there must be effective access to a court and that there must be overall fairness in order that the requirements of Article 6 are met. One aspect of effective access must be the ability of a party to present all necessary evidence to make his case and to understand and be able to engage with the process. So much is apparent from AK & L v Croatia. It must be borne in mind that both before a tribunal and a court the process is adversarial. Thus the tribunal cannot obtain evidence where there are gaps in what an applicant has been able to produce. Equally, it may have difficulties if there is defective written material put before it in appreciating whether there is any substance to a claim or even if any particular human rights claim is properly raised. I think the words ‘practically impossible’ do set the standard at too high a level, but, as Chadwick LJ indicated, the threshold is relatively high. No doubt it would generally be better if an appellant were represented, but that is not the test. Nevertheless, the Director should not be too ready to assume that the tribunal’s experience in having to deal with litigants in person and, where, as will often be the case, the party’s knowledge of English is non-existent or poor, the provision of an interpreter will enable justice to be done.”

s10(3) LASPO (the power to make legal aid available where necessary or appropriate to prevent breach of material rights) is concerned with procedural rights. That is the procedural requirements inherent in any article, rather than a breach of the substantive right itself. see pa 40.

Also referred to are the obiter remarks of Coulson J in M v Director of Legal Aid and Casework [2014] EWHC 1354 (Admin). Collins J disagreed with those remarks that suggested that cases falling within s10(3)(a) would be extremely rare – if as Coulson J suggested that section could only be satisfied if there was complete certainty at the outset that there would, without qualification, be a breach – s10(3) would never come into effect at all!

What all this boils down to is that the test in the guidance – which applies as much to family s10 applications as immigration - is too high. Even without article 6, article 8 carries with it procedural requirements which must be taken into account (pa 51). Those procedural rights require fairness and an effective right to put forward a case.

The concluding paragraph of the judgment as it appears on BAILII appears to be cut off in its prime, reading as follows :

“In the circumstances, the decision of the Director in each of the claims is quashed. I have indicated in individual claims whether I was of the view that legal aid should have been granted, but I will leave open to Mr Chamberlain to submit that in any in which I have indicated that view I should not so order. The Lord Chancellor’s Guidance is in the respects I have indicated in my judgment unlawful. I think that the appropriate relief would be a declaration that in those respects it is unlawful, but I will leave counsel to make”

So, although I think a declaration has been made that the Guidance was unlawful – this is not 100% clear.

In any event, expect amended Guidance in due course….and hopefully an upturn in the number of exceptional funding applications granted. This case has had a positive impact on at least one family case of which I am aware and it may be that family lawyers preparing or assisting with s10 applications will want to refer to this case.