FLBA Resolutions

The following resolutions were unanimously approved at the national meeting of the Family Law Bar Association on 17th September 2011. They have been sent to the Government :

  1. The FLBA calls on the Government to include in the Legal Aid Sentencing and Punishment of Offenders Bill (“the Bill”) a specific provision requiring the Lord Chancellor, in the exercise of his powers to ensure practical and effective access to justice.
  2. The FLBA proposes that the Bill be amended to require the Lord Chancellor, when making relevant regulations, to have regard (as at present) to the need to secure the provision of services by a sufficient number of competent persons and bodies.
  3. The FLBA invites the Government to extend the provision of legal aid in exceptional cases to all cases where there is an actual or threatened injustice (Clause 9), and to consult interested parties on the relevant guidance as to the exercise of the Director’s discretion in this regard.
  4. The FLBA invites the Government to amend the Bill to ensure that public funds are made available (subject to eligibility) for legal advice and representation for all parties in all cases where:
  • The child has been joined as a party (whether under Rule 16 or otherwise);
  • The court is considering making findings of harm/abuse (whether to adult or child).
  • The court is considering making a section 37 direction (investigation of child’s circumstances by a Local Authority) or a section 38 order (interim removal into care, even in private law proceedings).
  1. The FLBA invites the Government to extend the definition of domestic abuse (Schedule 1) to include “any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional)”.
  2. The FLBA invites the Government to accept as evidence of domestic abuse for the purposes of entitlement to public funds not only that he/she has obtained an injunction inFLA 1996 proceedings, or there is a finding of fact of abuse in previous proceedings, but alternatively that

–                      “the individual has been admitted to a refuge for persons suffering from domestic abuse; OR

–                      the individual has obtained medical or other professional services relating to the consequences of domestic abuse; OR

–                      the individual has made a complaint to the police of an offence of domestic abuse which is being investigated;

–                      a competent mediator is satisfied that mediation is not suitable on consideration of previous instance(s) of domestic abuse or other power imbalance”.

  1. The FLBA requires the Ministry of Justice to state openly and urgently what plans it has made for ensuring that those who need acute crisis advice will receive such advice.
  2. The FLBA invites the Government to announce what steps it proposes to take to support the Judiciary, and Her Majesty’s Courts & Tribunals Service, in managing the predicted higher number of litigants in person appearing in the family courts in private law cases.

LiP Service

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. Continue Reading…

Media Access & Reporting

Thanks to Adam Wagner at UKHR Blog for alerting me to today’s* publication of “A joint publication of The President of the Family Division, the Judicial College and the Society of Editors” entitled “Media Access & Reporting”, which comes just as I was about to put finger to keyboard and begin to type a blog post containing a proposal in respect of that very topic…Of which more momentarily…

Apparently the document arises from “a group of lawyers and journalists, including representatives from both the print and broadcast media, [who] got together to talk to each other”. Whatever that means this is not, I think, a piece of work that the family bar were particularly aware was underway.

Regardless of that, it’s a pleasant surprise, because this is a really useful document for lawyer practitioners and for judges, albeit probably a bit inaccessible for non-legal interested minds. It is a job and a half gathering together all the source material whenever a reporting issue comes up, and this is a really comprehensive analysis of what rules apply in what cases, including in the Court of Protection. It is far more comprehensive and accurate in its points of detail than my previous blog posts and I will use it as a reference tool when such issues arise in my cases. It is also worth noting that there are some interesting, albeit rather esoteric, questions raised about a number of potential points of law, which do rather invite the attention of mischievous lawyers with too much time on their hands.

You can read the guidance on the Judiciary website here.

So, to the main point:

There is much concern at the LASPO proposals on legal aid. There are many individuals and organisations doing their best to bring to the attention of the public and parliament the reality of what these cuts will mean for ordinary people. Sound off for Justice produced an excellent video campaign featuring a hypothetical private law family dispute (a father seeking contact), but otherwise there is little concrete information out there to counter suggestions that public funds are being frittered away on legal aid for undeserving or trivial cases. Individuals involved in private law family cases are likely to be particularly hard hit by the proposed cuts, and whilst those involved in the field of family law are able to articulate the myriad reasons why the cuts would be catastrophic for access to justice somehow the message is not getting across as effectively in family law. I am concerned that family law will end up bearing the brunt, where concessions are made in other areas, because I think it is in many ways the easiest target. I have been pondering whether this difficulty is in large part because the impact of legal aid on people’s lives is not made real in family cases in the way that it is in other types of work. Unlike housing or PI, where vulnerable people who have been helped by legal aid are able to tell their story, there are no real case studies of family cases – because they cannot be reported. Continue Reading…