The barriers to effective access to justice encountered by litigants in person in private family matters post-LASPO

ABSTRACT

In February 2019, some six years after the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) removed legal aid from a wide range of civil and family matters, the Government released its Post Implementation Review of the impact of LASPO and accompanying action plan. Publication is at a time when governmental policy extolling the virtues of mediation and online dispute resolution has the potential to have a profound effect on family law process. Against this background and having regard to the impact of the Covid-19 pandemic on the family justice system, this paper discusses the findings of the author’s qualitative study on the experiences of litigants in person in civil and family courts. It suggests a typology of litigants in person, explains how and where litigants in person in child arrangements proceedings seek advice and the significant access to justice barriers arising from the compulsory requirement to attend a MIAM before commencing proceedings and attending the fact-finding stage without representation. Ultimately, the paper offers fresh evidence of the harsh realities of litigating without representation in the family court, which despite espousing an inquisitorial process, remains adversarial in character.

KEYWORDS:

• LASPO
• litigants in person
• access to justice
• digitisation
• unbundling
• MIAMs
• fact-finding

Acknowledgements

The author would like to thank Dr Paula Case, Dr Firat Cengiz and the anonymous reviewer for their detailed and insightful comments on earlier drafts.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. According to the National Audit Office (NAO 2014–15, p. 15), there was an increase of 18,519 family cases involving both sides being unrepresented in 2013–14. Also, 80% of private family cases involved at least one side without representation. This is supported by figures showing that the number of private law children cases involving representation for both parties had fallen from 50% in 2011 to 26% in 2014 (Court Statistics Quarterly (January to March 2014).

2. The Government estimated that the reforms would make estimated savings of £350 million in 2014–15 (MOJ 2010, para 1.7). In 2014, the NAO confirmed that the Government was close to making savings of over £300 million (NAO 2014–15, p. 4). However, the Bach Commission estimate that savings are closer to £450 million (Bach Commission 2017).

3. Regulation 33 of The Civil Legal Aid (Procedure) Regulations 2012 as amended by The Civil Legal Aid (Procedure) (Amendment) Regulations 2016 sets out the evidence which may support a legal aid application when domestic abuse is alleged.

4. Re A (a minor) (fact finding; unrepresented party) [2017] EWHC 1195 (Fam) [60] (Hayden J) – ‘It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator’.

5. Although the MOJ initially estimated that 53% to 74% of applications for exceptional case funding would be granted (NAO 2014–15), figures proved much lower. Between July – September 2014 only 15% of applications were granted (MOJ 2014, p. 34). This has since improved dramatically due to amendments to the scheme. Of those applications received between April and June 2018, 64% were granted (MOJ 2018b, p. 10). However, the number of applications has remained well below the government’s estimate of 5,000 to 7,000 per year (MOJ 2014). The number of applications in April – June 2018 was 765 (MOJ 2018b, p. 10). In the period April 2013 to September 2014 there were a mere 2,090 applications (MOJ 2014, Table 8.1).

6. The PSU is an independent charity whose aim is to ‘support people going through the court process without legal representation’. It recently changed its name to Support Through Court.

7. ‘In January to March 2018, the proportion of disposals where neither the applicant nor respondent had legal representation was 37%, an increase of 20 percentage points since April to June 2013. Correspondingly, the proportion of cases where both parties had legal representation dropped by 16 percentage points to 19% over the same period’ (MOJ 2018b, p. 6).

8. Children Act 1989.

9. I am indebted to Professors Liz Trinder and Helen Stalford for their insightful comments during PhD viva on the development of these categories.

10. For example, Fathers4 Justice https://www.fathers-4-justice.org/about-f4j/our-story/accessed on 28.10.19.

11. The sum of £5m has been committed to the establishment of an innovation fund to foster a culture of innovation (MOJ 2019b, p. 35).

12. https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/leadership-judges/accessed on 07.10.19.

13. See also the views of members of the judiciary supporting the proposition that assistance requires redefinition so that ‘legal help’ includes choosing the correct form (MOJ 2017, p. 2).

14. Personal Support Unit https://www.thepsu.org/about-us/what-we-do/accessed on 11.07.16.

15. See Trinder et al. (2014, p. 112) for further suggestions on how practical support and legal advice can be provided for LIPs.

16. Mosten (1995) explains that these services usually consist of ‘(1) gathering facts, (2) advising the client, (3) discovering facts of the opposing party, (4) researching the law, (5) drafting correspondence and documents, (6) negotiating, and (7) representing the client in court’.

17. Trinder et al. (2014, p. 76) found evidence of this approach, which they define as ‘I’ll devise and deliver the questions’.

18. For a vivid portrayal of the plight of women unable to satisfy the legal aid criteria to qualify for legal aid, see (Rights of Women 2015).