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.

Trying To End Things

I’ve had two very different articles published today, both about attempts to end things:

Those responsible for the latter could do to take a leaf out of the former: draconian powers, not to be used summarily…sadly we read today that the Government is planning to fast track the Legal Aid, Sentencing and Punishment of Offenders Bill – second reading on Weds next week. That is really, really shoddy: politics at its worst.

Summary of Legal Aid Reforms to Family Law

Nearly Legal has provided an excellent summary of the legal aid reforms in respect of housing and other areas of law: Ask not for whom the bill tolls. Due to other commitments I have not been able to put together a full analysis of the Bill insofar as is relates to family law. That will follow, but here is a summary of the position (largely borrowed from someone else I’m afraid).

Headlines: The confirmation of the removal of large numbers of private law cases from scope of legal aid, and of the reduction of family fees by 10% (on top of the FAS cuts implemented in May).

The Bill

Part 1 of the Bill itself is dedicated to Legal Aid (Clauses 1-40). The Bill contains provisions to abolish the LSC and transfer the day-to-day administration of legal aid to the Lord Chancellor. In practice, this will be done by civil servants in an executive agency of the Ministry of Justice. However, decisions on legal aid in individual cases will be taken by a statutory office holder: a civil servant designated by the Lord Chancellor as the Director of Legal Aid Casework. The Lord Chancellor will have no power to direct or issue guidance to the Director in relation to individual cases

There are empowering sections for the Lord Chancellor on legal aid issues, there is some provision about funding legal services and eligibility for legal aid (Clause 20). By Clause 36 the Legal Services Commission is abolished.

Clause 9 is an important provision for the payment of legal aid for ‘exceptional cases’ (i.e. where failure to do so would be a breach of the individual’s Convention rights within the meaning of the Human Rights Act 1998). It is clear from the tenor of the response paper that the Government anticipate that this will be a narrow category, albeit with some initial boundary testing via JR.

In Part 2 of the Bill there is provision (Clause 45) for a new section 22ZA of the MCA 1973 for the payment of a sum to enable the other party to obtain legal services in proceedings for divorce, nullity of marriage or judicial separation. Clause 22ZB sets out the matters to which the court should have regard in a legal services order.

Schedule 1 sets out the categories of cases in and out of scope. Schedule 1 is structured in a rather confusing way with a set of “excluded services” and other “exceptions and exclusions” some of which then don’t apply in certain instances. I suggest you tackle it in print rather than on screen.

The Response

The response contains a narrative of the contents of the Bill, and sets out the Legal Aid Reform Programme.

There is a very poor assessment of the impact of litigants in person in the courts.  There is a summary of the findings of a literature review in the main response thus (para.138) “Overall the review found that the evidence available on litigants-in-person tends to suggest a mixed impact in length of proceedings. This was affected by case type and how active the litigants were. It was suggested that cases took longer when the unrepresented litigant was active but could take less time when the litigant was inactive.” See also para 68 – 69:

“68. However the Government does accept, even if there is no conclusive evidence of this, the likelihood of an increase in volume of litigants-in-person, and potentially some worse outcomes for them materialising. But it is not the case that everyone is entitled to taxpayer funded legal representation for any dispute or to a particular outcome in litigation. Our new exceptional funding scheme will mean that no one will be deprived of their fundamental rights of access to justice. Taxpayer funded representation has had to be targeted on priority areas.

69. Litigants-in-personareafeatureofthecurrentjusticesystem.Some people choose not to be legally represented because they consider it unnecessary or that they can do a better job themselves, and others, who may fail to qualify for legal aid on either means or merits grounds, may feel that they are unable or unwilling to pay for representation.”

and 74:

“74 …further examination of the system to support litigants-in-person is required and we intend to review this issue.”

But not before they implement the cuts it seems.

Even though the majority of responses to the Green Paper were “overwhelmingly” against the removal of private law cases from scope, the proposal to exclude large numbers of private law cases from the scope of legal aid has been confirmed. However, some of the exceptions have been expanded.

Domestic violence: The Government maintains that it accepts that, to ensure that victims of domestic violence are protected, the criteria for the domestic violence exception originally proposed in the consultation needed to be widened, whilst maintaining the requirement for objective evidence of domestic violence. It therefore decided to accept some additional circumstances as evidence of domestic violence, so that the criteria should target legal aid to genuine cases without providing an incentive for unfounded allegations of domestic violence. Legal aid will be now available, for example, where there has been a referral to a Multi-Agency Risk Assessment Conference in the past 12 months, as well as where a protective injunction or other order has been put in place in the past 12 months.

The Government accepts that legal aid should be routinely available in cases where a child is at risk of abuse, provided that there is objective evidence of the risk of abuse. The Government has therefore decided to extend the approach to the criteria for the domestic violence exception in private law family cases to provide legal aid for the party seeking to protect the child in cases.

I need to look at this properly but my understanding of the position from the response paper is that in order to obtain a grant of legal aid the applicant for funding must produce objective evidence either be criminal proceedings, MARAC OR civil findings of fact (or in the case of children a CP Plan). If this is right it rather defeats the object of having funding, which will in many cases be in order to run a fact finding exercise. As I say that is something I need to check. Views welcome in comments.

Other points:

  • Legal aid for mediation will be expanded (slightly).


  • The interim lump sum provision will be brought in for ancillary relief cases (see above); however

… the Government has not been persuaded that legal aid should be available for advice and/or representation to apply for an interim lump sum costs order or for enforcement proceedings (see para.119)

  • The exceptional funding regime will be in place to provide legal aid where the failure to do so would be likely to result in a breach of the individual’s rights to legal aid under the Human Rights Act 1998 or European Union law.


  • On the subject of fees… it is to be noted that “there was strong opposition to the proposals”; it is further accepted that “there is a risk that the fee reductions could lead to a reduction in the availability of solicitors and barristers prepared to undertake legally aided work” (para.233)… (para.234) however, “… we intend to implement the reduction of 10% to all fees paid under the civil and family legal aid scheme as set out in the consultation”

  • The proposals for QCs remains as proposed in the Green Paper: “A QC is a specialised resource. The Government takes the view that they should only be used in novel, complex or exceptional cases which require that level of skill” (para.245).


  • Expert fees: “The Government notes concerns about the level of fees paid to expert witnesses. However, given the need to make substantial savings to legal aid, it remains the Government’s view that fees paid to experts should be subject to the same constraints as those paid to lawyers”. (para.259)


More in due course.