Litigants in Person are in the news. The penny seems to be dropping that they are becoming the norm rather than the exception. The Gazette carries a piece on the soaring numbers of LiPs, based upon a recent and stark increase in demand upon the services offered by the PSU at the RCJ, in particular in family cases (19%).
Notably lacking from public debate at present is any reliable data as to the numbers of litigants in person and the fluctuations over time in those numbers. My own FOI request to the MoJ / HMCTS are presently due for response by 28 October. I am sanguine about the prospects of them producing any substantive response or any hard data upon which we can base reasonable debate. The Government itself has acknowledged the pathetic state of its management data in the justice system, in response to raised eyebrows about the same from the Justice Committee and the Norgrove Review Panel. It acknowledged the absence of proper data or research about LiPs in its response to the consultation that preceded LASPO. There simply isn’t any reliable statistical information, which makes all the more shocking the fact that the Government is knowingly and openly implementing plans which will significantly worsen the problems associated with LiPs through legal aid “reform”. Anecdotally of course we see with our own eyes every day that there are more and more LiPs, and that there is more and more delay. You don’t need statistics to work out that to add to that the inevitable impact of LASPO will equal a pile up, with queues for miles. And no exit in sight.
Also of interest today is the Government’s response to the Justice Committee’s report on the Family Justice System. It finally buries the “transparency” provisions in the ill-fated rush job that was Part II of the Children Schools & Families Act 2010 (page 31 and below), but more importantly sets out the Government’s position in respect of the operation of family courts, particularly workload and LiPs.
The Government’s response is riddled with tensions and what to my mind are irreconcilable internal contradictions. It is stated many times that it would be wrong to pre-empt the outcome of the Family Justice Review, we will await the report of the Family Justice Review etc. It is stated that the gaps in the evidence base are going to be addressed:
At pa 7 the reponse states that “In addition to improving the administrative data, we have also undertaken bespoke research projects in support of the Family Justice Review, due to be published alongside the [Family Justice] review”. I have no idea what these research projects are, it will be interesting to find out when the report is eventually published in November.
Again, at pa 9 “MoJ has started to develop a Family Justice Evidence and Analysis Strategy, in consultation with DfE, Cafcass and HMCTS, which will further address some of the issues identified by the Committee and Family Justice Review. This will include our approach to improving data availability and quality, as well as the wider research evidence base, and will address some of the weaknesses. A progress report will be included as part of the Government response to the Family Justice Review.”
And yet. LASPO is due for its third reading, rushed into Parliament before the summer recess, so breathless was the Government for speedy reform. It would be crude to describe such an approach as arse over tit. But it seems fittingly crude (Apologies to those dear readers of a delicate disposition. Please address your complaints to the MoJ).
Paragraph 12 is important:
“We accept the Committee’s observations about implementing changes to legal aid alongside those to the family justice system. We will look carefully at the interactions and the combined effects of both sets of reforms when developing implementation plans for the Family Justice Review’s recommendations. It should be noted that some of the Government’s legal aid changes will be introduced in advance of the implementation of the recommendations of the Family Justice Review.”
Read it carefully. LASPO goes ahead regardless. How is that not pre-empting the FJR?
Interestingly, cited as evidence that the courts are being adequately resourced by the MoJ, is the fact that “During 2010–11, the courts disposed of 30% more care proceedings cases than in 2009–10.” That is a massive spike. And I can say from experience the strain is showing. The judges are knackered. The court staff are at their wits end. The phones ring unanswered. Orders are delayed weeks, files lost, private cases (often involving LiPs) are stood out or take all day to come on before the judge. What happens when you add thousands more litigants in person to the mix?
Manifestly inaccurate (unless there has been some radical shift in position that I am unaware of) are assertions that “Legal aid will remain available for cases where there is evidence of domestic violence and cases where a child is at risk of abuse to safeguard vulnerable groups.”(pa 22) and “We are prioritising those family cases where there is the greatest risk of harm: cases involving domestic violence or child abuse” (pa 61). But legal aid will only be available for cases where a child is at risk of abuse where a local authority issues care proceedings, or (for a child only) where coincidentally the child is separately represented. The parents will not be eligible for legal aid in private law dispute regardless of how serious the allegations against them are, although I believe that in some instances the “protective” parent may be eligible for legal aid (from memory – too tired to look it up tonight). Once again there is a failure to distinguish between public law cases, for which there is legal aid, and private law cases which may involve risks of abuse or significant harm, for which in broad terms, there is no legal aid.
Pa 61 acknowledges the possibility of worse outcomes for LiPs.
It goes on to say that “both the civil and family justice systems will need to become simpler to navigate and more responsive to the needs of unrepresented users of the system. This will come about in part through the results of the Family Justice Review. [You hope – but what if not?] The Government also accepts that procedures and guidance will need to be reviewed and improved in advance of the legal aid reforms taking effect. We are starting this work now.” (pa 62)
The response then cites the information on DirectGov as an example of the resources available to LiPs. This is laughable. Thankfully the subsequent paragraph reflects that “We are reviewing this content and are in the process of developing a series of more specific guides for litigants in person that detail court processes. As part of this work we are also considering how best to work with voluntary and other organisations in producing these guides.”
Now, I don’t want to blow my own trumpet here, but I can scarcely let that pass without noting that
a) there is a recently published Handbook for Litigants in Person who are using the Family Courts (some of us saw this coming some way back along the road)
b) there is a copy of it in Mr Djanogly’s in tray (or possibly in his waste paper basket)
c) I am still awaiting a response to my letter to him which is now some months old, and in which I suggested that he take a look at the amount of detail in my book, noted that to actually give any meaningful assistance to LiPs was a pretty difficult job, and that even a reasonably substantial book like mine would be B all use to many LiPs who lacked the educational or emotional resources to make use of it
I’m particular perplexed at pa 68 which reads:
“Cross-examination of victims by an unrepresented perpetrator of abuse is an issue that can arise at present. Judges have powers and are trained to manage situations such as this. For example, they can intervene to prevent inappropriate questioning, or have questions relayed to the witness, rather than asked directly. Additionally, where there is evidence of domestic violence, legal aid will continue to be available to the victim to provide funding for a legal representative who could assist in addressing any inappropriate conduct on the abuser’s part.”
Yes. It happens anyway. And it’s a nightmare for all involved. And your point is? Come to court and watch it and tell me it isn’t an abusive experience in itself. No amount of judicial training can magic this problem away. Judges cannot come down from the bench.
So, all in all, not much to inspire hope that there will be a change of course, or even the application of the brakes. We are bearing relentlessly towards the pile up ahead, fingers in ears and oblivious to the satnav’s urgent rebuke “Perform a U turn if possible. Perform a U turn if possible”. Gridlock here we come.
Strangely when I go to Court with LIPs and there are no lawyers involved matters invariably move along more quickly with Judges making decisions sooner – result is the case is sorted out earlier.
I’m not alone in finding this but I suppose this will never be accepted by lawyers who believe their input is invaluable.
The cases I am involved in which take years (4 or 5 years or more in some cases) all have lawyers with the resident parent on Legal Aid.
Few and far between are the situations in which you see 2 LIPs battling it out over years, it is nearly always when Legal Aid is involved (except in some rich LIP cases) that the cases drag on interminably it seems.
This is only mine and other’s I speak to anecdotal evidence but after 10 years in the family courts its a valid experience.
Judges also far more quickly come down like a ton of bricks on adversarial LIPs and any MF if it seems they are delaying or stirring things up.
Interesting post on this again Lucy. Are you in touch with the CJC working party on this? They should certainly know about your work/book as it cuts across both family and civil fields.
One thing that has really struck home recently is the impact of court service cuts: counter services are, I hear, reducing dramatically, meaning one more source of help (which would usually have been minimal) and signposting to advice providers is being squeezed out in the name of efficiency. And all the while CABx appear to be closing around the country.
It really is a grim picture.
Yes counters are open reduced hours in many courts and in our local courts there aren’t even ushers signing people in on most floors.
Yes, I’d heard about Usher cuts too. Important role.
Chambers will be relieved to hear that his experience is not merely anecdotal. There is a US study which shows that cases take longest where both parties are represented and are quickest where they appear pro se (in person). Admittedly the study applies mainly to divorce cases and not to parenting disputes, but the same principle may still apply. Obviously the UK courts don’t record this sort of information. http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1084&context=facpub
There was a statement made by Munby to a Commons committee some years ago that he very often preferred LIPs to represented parties because it was easier to get to the truth. He suggested that the help provided by lawyers should be put in inverted commas.
I am not defending the Government’s ill-thought through reforms, and there are some truly awful comments in its response regarding abandoned cases and the rejection of shared parenting. But lawyers do, I think, overestimate the usefulness of their contribution to proceedings and the consequences of the coming reforms may not be quite as catastrophic as feared. Small comfort to litigants.
Getting the necessary information to large numbers of unrepresented litigants is a problem many of us are grappling with. You obviously recognise, Lucy, that your book, excellent though it is, isn’t for everyone. As the compiler of a guide myself, I am aware some litigants take one look at it and realise that even armed with it, there is no way they can represent themselves. As long as the system remains court-based and adversarial, there will remain a need for someone (lawyers of McKenzies) to guide people through it. If you can’t afford a lawyer and don’t have access to one of the handful of competent McKenzies you are stuffed.
And is there any focus on children being damaged by parental alienation? My recent experience is that the local authority won’t intervene where there is the plainest abuse of this type. No public law proceedings, therefore. So who is going to intervene to protect children from the implacably hostile parent? How will that person fund representation?
I guess that some cases will proceed much more quickly though – what lay person is going to find cross examination of the other side’s witnesses something which can be mastered?
I am currently going through my own ancillary relief proceedings as a LiP. I am a legal aid solicitor – mostly criminal defence, but some family work (mainly private children).
I don’t qualify for LA (by £50!) and I can’t afford rep, so going it alone. It is extremely stressful, and complex and I have now decided to forego heating for 3 months to afford a solicitor. If I with some legal knowledge can’t manage it, how on earth does the govt expect the lay person to??
I have dealt with proceedings as a LiP myself and I agree it is a terribly stressful experience even as a lawyer. I also felt as if court staff assumed I was a nutter from the moment I said “I’m acting in person”.
My limited experience as a once-Tribunal clerk/admin worker is that the general attitude seemed to be that cases where the parties were not represented were often, but not always, quicker. However, there were still quite a few situations where it was obvious that getting to the bottom of things would take far longer than it would have done if they had representation.
Now I’m a (pretty lowly) claimant caseworker who sometimes deals with a different kind of Tribunal claim to my last job, my heart often sinks when I get calls from people who are a long way down the line in whatever situation they’re in (perhaps they’ve already appealed and lost, or they missed the deadline, and so on) and have only just decided to try and get help. By then it’s often too late to undo the damage completely.
I don’t know how barristers fit into that, but from a general perspective I’d say there’s a lot more to dealing with a situation efficiently and fairly than the final hearing, and many people do need advice. Perhaps I’m stating the obvious, and I’m sure that for every person who calls me and needs help there is at least one other person out there who is capable of sorting out their own problems, but that isn’t the point.
The thing is they may be quicker because the valid points are not being made (or not being made properly) and the outcomes are therefore wrong. I take the point that the involvement of lawyers can complicate matters, but it’s a balance isn’t it.
And you are right, people need support early on in order to avoid mistakes. If a person is well advised and well prepared as a consequence the case is less likely to become protracted or produce a “wrong” outcome. For some cases early advice and support will be sufficient to set them off on the right track. For others this is not so. And that depends in part on the individual, and in part on the facts and legal issues in the case.
I agree about valid points not being made and quicker not always being better. I don’t have much courtroom experience but I wonder how the judiciary fits into this? Presumably any half-decent judge would be able to spot when the client’s representative is basically wasting time, but at the same time they can’t read people’s minds and can only make their decision based on the evidence put to them. Or am I being too nice to judges?
From a purely personal point of view, I completed an family matter LIP with no lawyers,despite being one! But it was all amicable – and that’s the difference.
Agree with familoo – the proceedings may well b quicker, but at what cost? For example, in ancillary relief – if one of the parties is financially controlling, then yes, there may be an early resolution, but it may be incredibly unfair to one party. Equally in contact/residence issues, one party may feel compelled to agree levels of contact that they are uncomfortable with. The opportunities for inequitable results are far higher with LiPs I would submit.
Nearly every Dad I have come across has done better as a LIP – or self litigant as we call them in NZ. In my experience here in NZ it’s not about knowing the law but about understanding the system and process. As my mentor in this said to me ‘it’s not rocket science it’s a book.’
As plug if Familloo lets in sneak by The Separating Father’s Guide is now available as a Kindle Guide go to Kindle and search KineLi Publishing.
I think also it has to be bourne in mind that a proportion of cases where both parties are in person will be cases which are more straightforward, or where the parties aare to some extent able to work together – I’ve certainly had situations where I’ve becoming involved late in the proeedigns because an issue has come up where, perhaps, help is needed with drafting or other clarification, but where the parties are and were on reasonable terms.
I’ve also seen a lot of cases where valid points are not and have not been made at an early stage, and then a lawyer has become involved, raised them, and is immediately blamed for being the reason why things are more complex / drawn out (raising the issue of pensions on behalf of a low earning mother/wife being a classic example..)
I do think that some form of early guidance, whether from lawyers, cafcass or a judge can be hugely helpful,not least in manging expectations of what a court can and can’t achieve.