FOI about LIPs from MOJ is FFS and OMG then AAK

I recently received a response to my Freedom of Information Request to the Ministry of Justice concerning private family cases and litigants in person. It’s a little impenetrable, so to help break through to what it means I’m going to run through it. First, read the response here.

The information comes from the HMCS FamilyMan database, the software so maligned by the Norgrove Review. It is clear that in some respects the data is unreliable, the most obvious example being the numbers of private law children cases with guardian appointments, which are very obviously too low (260 out of 45020 cases) and is likely to be simply because court staff do not consistently update the case records when an appointment is made.

So what I’ve been given is a set of tables.

Table 1 (actually comprised of two tables) shows Private law Children Act cases still outstanding in Family Proceedings Courts, as at 30th June 2011. The first shows “Applicant Representation”, the second “Respondent Representation”. Table 2 is the same date for the County Court, Table 3 for the High Court.

It’s unclear what duplication of data there is between the Applicant and Respondent tables, or whether the parties in cases involving cross applications are each counted in both tables as applicant and respondent. It is difficult to guess what proportion of “applicants” are applicants for contact (probably majority fathers), applicants for residence (probably reasonably evenly split) or applicants for other orders or combinations of orders. And any single party may be both applicant (say for contact) and respondent (say to a residence application). As a consequence it’s difficult to draw much from the fact that respondents are far less likely to be represented than applicants in all tiers of court (broadly speaking around 20% of Applicants are unrepresented and around 40% of Respondents are unrepresented in all tiers – based on the “none” figures). One could hypothesise that those who are initiating proceedings are far more likely to have organised themselves and actively sought advice and assistance prior to issue, or that a high proportion of those who are applicants do so because of intransigent and inflexible exes who may be less inclined to seek or follow advice – but we don’t even know when the data for representation is gathered (at issue?) or if it is maintained and updated as cases progress, lawyers are sacked and clients run out of funds for representation. Frankly, who knows?

But the interesting information one can glean from these tables is this: there is a column for mean length of case and median length of case. In all levels of court, for both Respondents and Applicants and regardless of who is or is not represented the median length of case is significantly less than the mean length of case. If my rudimentary grasp of mathematics does not fail me this is an indicator that there is likely to be a tail end of a few MAHUSIVELY long cases which are skewing the mean and pushing it up. I think this is significant. By way of an example the mean case duration in the FPC is 39 weeks, but the median is only 30. That’s almost 25% shorter.

The other trend that shows clearly across all these tables is that the cases where all applicants or all respondents are represented take longer to complete than those where there are no lawyers. Again, it’s difficult to draw much from this: it doesn’t mean lawyers make cases longer. It is more likely to reflect the fact that more lawyers are more likely to be involved in the more complex cases. What we aren’t able to say is how long the cases involving lawyers would have taken if the lawyers had not been involved OR what the quality of outcome would have been without them. It could reflect the fact that those who are unable to secure representation give up or fail to run important arguments, leading to swifter if less just disposal.

Interestingly in the County Court the shortest cases by mean and median are those where all applicants are represented. This class of case makes up by far the biggest single class of cases (27,160 of the 33,830 cases in the County Court and 45,280 in all tiers combined). Where all applicants are represented in the County Court the median case duration is 40 weeks, compared to 51 and 44 for “some applicants represented” and “none” respectively. This median should be compared with a whopping 62 week mean duration for cases where all applicants are represented, again suggesting there are a few intractable cases skewing the mean.

By contrast, where all Respondents are represented in the County Court cases take longer. Durations in the respondents table are lowest where some respondents are represented. This probably mainly reflects guardian cases, where child respondents are represented, and may be a reflection of the fact that a Guardian’s involvement can help to identify issues and to bring matters to a head with recommendation and a proactive child focussed push for resolution.

Putting all of this in perspective the total numbers of private law children cases are vast (45,280) compared with public law cases (13,700 in all tiers), notwithstanding the interminable rise in care issue rates. Whilst FPCs are carrying out (roughly) 1/3 care 2/3 private law, only around 20% of county court children work is care (by case volume not necessarily workload, resource or duration).

Unfortunately the response did not give any information about case durations in ancillary relief cases, nor was any explanation for this offered.

So, in summary, what does this tell us? Well, it isn’t very meaningful without other data and explanation, a point that David Norgrove has rightly made. How can either HMCTS, the judiciary or the Government understand the reasons why some cases take longer, absorb more resource, unless it understands the dynamics, the roles, what works and what doesn’t work? It needs the management data and proper analysis to do that. The Government doesn’t have the data to back up the proposals in LASPO, or to properly assess the impact of it on either access to justice, case volume, case duration or overall cost efficiency, because neither HMCTS nor anyone else is gathering it. It’s clear from a fairly basic analysis of the data that is available that the issues are complex and that it is not easy to evidence a hypothesis that a reduction in the number of lawyers will result in a reduction in average case duration. It is even harder to evidence the proposition that such a fundamental shift in how the system operates can be achieved without damage to access to justice. When listening to Ministers spout about LASPO and about lawyers (fat cats advancing behind a wall of women and children etc etc) lawyers are inevitably cast as part of the problem not the solution. They may indeed be on occasion part of the problem. But we really do need to turn the dialogue on it’s head: lawyers are part of the personnel that the Family Justice System relies upon in order to achieve the throughput of cases that it does. At the moment there is at least one lawyer working on the majority of cases. The LASPO proposals will, through decimation of legal aid in family (and other) cases, make massive cuts to the personnel available to service cases, leaving the already depleted and demoralised HMCTS staff (and the judiciary) to pick up the slack. There isn’t any slack in the system.

7 thoughts on “FOI about LIPs from MOJ is FFS and OMG then AAK

  1. There is a huge difference in cases where lawyers are paid from private means and those from Legal Aid.

    There simply is no incentive for resident parents (mothers generally) on Legal Aid to move from entrenched and child harming positions when they can spend years in Court with a barrister and solicitor assisting them in stopping/minimising contact until the Courts tell the unfortunate father to go away.

    I as others continually find that the cases that last years (literally 3 or 4 years) and get nowhere in terms of a satisfactory outcome for the child to have a relationship with both parents, are those where a mother (usually) is on Legal Aid.

    I have seen barristers with their solicitors appeal on Legal Aid numerous times decisions, to no effect, bumping up the cost and delaying matters for children.

    It is atrocious that tax payers monies are funding many recalcitrant resident parents destructiveness regarding their children.

    When on the relatively few occasions that Legal Aid is pulled from these resident parents in long-standing going nowhere cases it is generally very quickly that matters are resolved and children move forward in a relationship with both of their parents.

    I don’t wish to knock lawyers per se, however I do think it is abhorrent that Legal Aid funded lawyers are allowed to to continue for years in many cases supporting resident parents to obstruct and deny children a relationship with the other parent, many times in direct defiance of previous court orders.

    Stopping Legal Aid in these matters will mean that judges will not be able to hide behind the lawyers who support the resident parent and will find it far easier to make robust decisions earlier without worrying about being undermined by unhelpful (overall picture) Legal Aid lawyers.

    • Your arguments are arguments in support of a tightening of legal aid so that the duties that lawyers have to the legal aid fund to recommend funding is withdrawn are properly policed and enforced. They are not arguments for ditching legal aid per se – that would be throwing the baby out with the bathwater.

      There are two sides to every story. Many of the entrenched cases I see where a mother is represented are cases where even though things are quite dire a father will not give up. You can see intractable cases from different perspectives.

  2. In flagrante delicto

    Dear Lucy…where were you when the select committee needed you. Thank you and well done for this expose of lack of data and knowledge to make even basic changes to the Family Justice system a lottery with an uncertain future. I hope someone with clout has/is reading your blog..and allows a stay of execution until all the available information is properly considered.

    A.N.Whitehead…the great mathematician, philosopher and educationalist wrote in his book, “The Aims Of Education” in 1929…”that where attainable knowledge can change the issue…for the better….then ignorance has the guilt of vice”

  3. A similar situation as described by Chambers exits here in NZ.
    My suggestion is to cap the legal aid funding at $5000 in the family court.
    The NZ govt. is reviewing the family court as costs have ballooned with little change in the number of cases.
    I’ve come across some judges have started to propose personal costs, legal aid or not.

  4. Interesting comment from Ken as we are constantly told in England and Wales that legal aid expenditure is sensibly far lower everywhere else in the entire universe.

  5. […] Nicola Williams & Co published a thoughtful article on Flawbord earlier this week about the difficulties caused by and to litigants in person through their inability to secure legal advice and representation: Horrendous. Amongst other things the article looks at publicly available stats on the numbers of cases, noting along the way that those published stats don’t ”tell us … how many of those were dealt with without a solicitor or other representative.” No, they don’t, but I know where you can get ‘em, because I extracted them under the Freedom of Information Act and subsequently wrote a blog post about the resulting statistical tables. […]

  6. […] in person in private law matters. The request and the response I received can be found here, and my summary of the figures is here. It shows the position as at end Jun 2011. I’ve now made an updating request and have […]

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