I’ve noticed that the MoJ twitter account has a fondness for the hashtag #keepitoutofcourt *.
So they will no doubt be doubly pleased today.
Firstly, because in an innovative new form of Non Court Dispute Resolution that really does qualify for the now out of favour epithet “alternative”, fathers have begun taking justice to the MoJ along with their tents. To be more precise they are setting up camp on the Lord Chancellor’s roof. Keeping it out of court there. And out of doors it seems…
Secondly, because there are some stonking statistics that prove that people are #keepingitoutofcourt en masse. Yes, CAFCASS stats show a 36% decrease in private law applications for this July compared with last. And those of you who are as geeky as me about these stats will not have neglected to notice that this is not entirely a product of the abnormally high figures for last July – if you compare the stats since 2010 the figure of 2928 is substantially lower than any single year since 2010, and still 29% lower than July 2012, which is the last pre-LASPO comparator.
Here’s a thought though : If we’re getting 30% less cases does that represent a 30% drop in legal aid costs or a 30% drop in court resource? Ah reck’n not.
As for legal aid I would guess that a greater concentration of cases involve *one* party who is publicly funded, because the LASPO effect means that the preponderance of cases that proceed involve DV or CP issues. Most of these cases also involve one LiP. Many of the rest involve two. And of those involving a LiP the amount of time spend working out how to achieve fair trial in the absence of legal aid costs time and money to resolve, as recent caselaw demonstrates. Perhaps the overall financial cost has reduced but the level of wasted time and cost arguing about what legal aid will and won’t pay for is scandalous. And how do you factor in the long term social cost in those cases not pursued? How do you quantify the additional cost of mental health and social services to the generation of children whose relationship with their “other” parent has withered or who have been exposed to harm by a parent and who suffer the consequences as adults and as parents?
As for court time, anecdotally many courts are now giving FHDRAs 50-100% more listing time due to the impact of LiPs on their lists – and as for the number and duration of substantive hearings well, my consistent experience is that there is regularly a need for additional hearings with longer time estimates in cases involving LiPs – sometimes they can be quicker but usually not. So, if for every 100 cases that a court previously dealt with it is now dealing only with 70, lets say probably about half of that remaining 70 will require on average twice as much time. Lets say on average each case without LiPs requires 1 unit of time and each LiP case requires 2. So on the old caseload 100 units.
35 x 1 = 35
35 x 2 = 70
= 105 units of time compared to 100 (and that is even without the additional time required to deal with our beloved CAP forms).
Of course there are a number of assumptions and generalisations there, and to some extent I’m working back from my strong sense that whatever the stats say the courts are no less busy and are struggling more than they were say 2 years ago. I know I know. They aren’t even statistics, they are IFTTTs….But you get my point. And that’s the purpose of statistics, right?
Anyway, it’s all about the hashtag folks. So if you are feeling despondent remember : #keepitoutofcourt
And in the unlikely event you are still feeling despondent, you can read this sunshiney summary of all the glorious things that have happened since the Family Justice Review, entitled “A Brighter Future for Family Justice”. I have not yet read all of it, but apart from some minor inaccuracies (only about the law you know) I did notice a reference to implementation in “the autumn” of the parental involvement provisions. According to the Bright Future document, that provision is “to send a…message to parents about the approach which the courts will take” (the one’s who aren’t #keepingitoutofcourt, obviously).
Right. I’m off to devise a system of alternative access to justice that can be achieved in 140 characters or less. The problem is that I got as far as “a child arrangements order naming the person with whom a child is to live and specifying with whom the child should have contact or otherwi” before running out of room…
* Except when it’s adoption of course because then its #getitinandoutofcourtquickerthanyoucansaymartinnarey
RE: “And how do you factor in the long term social cost in those cases not pursued? How do you quantify the additional cost of mental health and social services to the generation of children whose relationship with their “other” parent has withered or who have been exposed to harm by a parent and who suffer the consequences as adults and as parents?”
But this is to ingore the feather-bedding effect of subsidising claimants almost to infinitiy which the old regime fostered. Having been on the receiving end of an 8 year ‘campaign’ by a legally aided person, the need to spend my cash on legal representation against ridiculous claims is even more galling – the more so when I won every one and yet I had no redress against the legal aid board to recover my costs.
Why aren’t the liberal ‘angels’ like you on my side ?
Robert,
From your comment you seem to be talking about civil cases not family, which is not the topic of my blog post. The majority of “claimants” (Applicants) in private family cases are fathers, and since LASPO they are largely unrepresented. Mothers are also more likely to be unrepresented than they were but my guess would be that the majority of certificates granted since LASPO in private law family cases will have been to women.
[…] #Keepitoutofcourt [Pink Tape] […]
How’s this for arguing about what legal aid will and won’t cover:
At a hearing I had legal aid to cover enforcing an order, but not to cover defending a cross application to vary the same order. Since both issues were dealt with at the same hearing, the LAC are still trying to square that circle about whether the advocate should get paid 8 months on.
Ah yes I’ve had that problem. I had funding for contact but not for application to discharge care order. Client wanted to argue the balance in person. In the end sol and I agreed to do the unfunded bit pro bono to avoid a situation where I argued half and she argued the other half in person (potentially scuppering the bit she did have funding for!). Didn’t have to argue the point with the LAA but the vast majority of the time was spent dealing with the funded bit and the fee payable was not affected by the inclusion of discharge because of the clonky nature of the fee structure on F5s.
The reforms are working very well from the governments point of view:
Make the bulk of applicants often waste the little money, time and emotional energy they have on generally pointless mediation.
Make the application forms for most Litigant in Persons almost undecipherable.
Close or limit access to Court offices to put off all but the most persistent.
When they actually get to a hearing have a judge often tell them to go away and try mediation again.
The result for children; the reforms are meaning more children are losing a relationship with a parent.
Most fathers have never had access to Legal Aid because they worked, whilst in the past most mothers had access to Legal Aid.
I would agree that the majority of legal Aid still goes to women but in drastically reduced numbers.
P.S.
I don’t agree with your view that LIPs take more of the courts time generally.
Often it is the opposite with LIPs being dealt with quickly by judges who do not have to spend time listening to lawyers (some who go on for ages in order to impress their clients).
Most LIPs sit there meekly and are guided by the judge quite quickly.
I think that they often take more time – but you are right not always. I think there is a high risk though that the meek / uncontested and easy to resolve ones will break down and end up taking more court resource overall. Again, not all of them, but a goodly proportion.
I think Robert’s point, and it is a fair one, is that for a significant group of people LASPOs cuts aren’t so much a removal of their rights, but a levelling of the playing field. If you were a parent who (just) went over the means limit to qualify for legal aid (perhaps because you didn’t have the children living with you) then you found yourself without representation facing someone who WAS represented.
And in some cases (I would by no means suggest all), that imbalance between someone who was represented and someone who either wasn’t or was having to pay more than they could afford to be represented, could be misused by dragging out proceedings and making it so difficult for someone to get contact that it was easier to give up than carry on.
It’s hard to know how big a problem that was, in terms of whether it was truly widespread or just that the people it happened to are vocal about it; but I’m very sure that if you were on the wrong end of “ten pounds over the limit no legal aid versus ten pounds under the limit, so here’s my barrister” it felt bloody miserable.
I’m as against LASPO as the next person, but this has always seemed to me to be the problem – if the means cut-off bore no relation to whether you could afford to pay privately then it resulted in unfairness for a significant number of people in private law cases who were far from being affluent.
But oh, have you seen the Mediation leaflets that are on Court usher desks around the country? Being distributed AT Court? And packed full of balanced information like “With mediation YOU are in control of what happens, not a Judge who you don’t know” and “It avoids long-drawn out court proceedings” (It uses the phrase long-drawn out court proceedings three times in four pages… A bit like going to A&E and their staff dishing out leaflets for BUPA)
That’s tantamount to saying “we will give you a poor service so you’d best find an alternative” isn’t it? How to inspire confidence in the justice system…
I agree with all of that Suesspicious Minds. I think it was pretty widespread and it was a genuine issue. But that said I don’t think the answer is to make it a problem for even more people.
No, I think there were better solutions – the one mooted by the FLBA for one, but anything along the lines of getting everyone who legitimately could not be expected to pay privately SOME representation (even subsidised with a contribution) but with less being spent per person.
“CAFCASS stats show a 36% decrease in private law applications for this July compared with last” – that’s a drop in applications, nothing to do with taking up more court resources. People who apply have no idea how busy the courts are or how long it will take, so that can’t influence their decision to apply.
Where is the tidal wave of LiPs you so confidently predicted before legal aid was cut? How can we rely on any prediction you make now when you got that so comprehensively wrong?
One thing that everyone can agree on is that the CAP is causing the courts to take longer. C100 is now twice as long as it was and the new template orders take the judges ages to trawl through and decide what parts are relevant. It’s not LiPs causing that, it’s the Family Court.
Yes it is a drop. No question. I don’t think people aren’t applying because the court is busy. I think they are not applying because they don’t think they can succeed. I think I predicted an increase in the proportion of LiPs, which has happened. I also thought there was a risk there might be a fall in applications because people might give up. Sadly that has happened and it is indicative of a profound lack of confidence in the courts and of a LiPs own ability to achieve justice without legal help.
And I agree with you about CAP Forms.
Whilst it appears there was a drop in applications before April of this year, there seems to be a marked drop since that time and I can only presume that is due to the requirement now to attend a mediation meeting.
LASPO seemed to result in an initial rise in applications by LIP’s, which is understandable.
I believe there are many LIP’s who are minded to fill in a form and send it to the court to try and remedy issues and this can be seen to bring about fairly quick results. I have many client’s who have done this an then seek some advice from time to time or want representation at a hearing or two.
The additional requirement is not always seen as positive by a lot of people that I have seen, albeit that mediation can of course have very good results.
For those who are not legally aided (who is left? -not many outside of public law matters that I see) there are people who see this additional requirement as a burden, a delay, an additional expense, a waste of time etc. There are vulnerable individuals who would previously have been legally aided who have difficulties dealing with such additional requirements themselves anyway and others who simply (for right or wrong) see it as a step too far for them to get anywhere.
I fear there are many who may now just give up. I guess that is great in terms of a reduced burden on the court but not so good in terms of individuals feeling they have access to justice.