And still the Ministry of Justice sails on…

19 May

Despite the Ministry of Justice, with Chris Grayling at the helm, being warned repeatedly of the consequences of cutting legal aid that would flow from LASPO (Legal Aid, Sentencing and Punishment of Offenders Act 2012) in the consultations held with, among others, legal professionals, court staff and the judiciary, they proceeded to ignore the valid concerns raised by those that work within the profession.

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custodyDespite the Ministry of Justice, with Chris Grayling at the helm, being warned repeatedly of the consequences of cutting legal aid that would flow from LASPO (Legal Aid, Sentencing and Punishment of Offenders Act 2012) in the consultations held with, among others, legal professionals, court staff and the judiciary, they proceeded to ignore the valid concerns raised by those that work within the profession. To no one’s surprise, the LASPO reforms have not brought to family cases a brave new world where parents agree harmoniously on the future living arrangements of their children after an initial session of mediation, or a world where hearings have grown shorter and the court system more efficient. Rather, the effect of taking legal aid away from a parent who wants to fight for their child to live with them, or to fight for the right to see their child for two weekends a month, has meant that the parent ventures forth into the justice system alone.

For some litigants in person (the way that parties acting in person are referred to in Court) the court arena is not daunting, but for a great many even obtaining the correct forms to issue the relevant application can be daunting (not least as the public counters at courts across the country are closing, c.f. Brighton Court Centre where I have heard there is no counter for the public to make enquiries and/or obtain forms any more). Once the relevant application is issued and the matter is listed for hearing, the parties are unlikely to talk to each other prior to going into court. Conversely, if the parties are both represented, when they arrive at court on the day of the hearing  their representatives will speak to each other prior to going into court to see if common ground can be negotiated and any agreement reached. In the first scenario the Judge will be faced with two parties who disagree with each other, may well dislike each other, or in some cases, be in fear of the other party. The Judge’s role is not to broker an agreement between the parties or act as mediator, but it is to case manage the case and to adjudicate the issues brought before him/her in any contested  hearing. If the parties do not come to an agreement at the first hearing and no ground is given by either side then the Judge will have no option but to put the matter of for a hearing. In the second scenario, where both parties are legally represented, the lay parties have the benefit of professional advice from a lawyer, who can advise on the reasonableness or otherwise of their position and the likely decision a court will come to in due course. The lay party is likely to take that advice and adopt a more reasonable approach, which can lead to compromise and an interim way forward, rather than a move straight into a contested hearing. If one party is represented and the other not, the unrepresented party will often decline to speak to the lawyer before going into Court, fearing that they are being tricked into an agreement that is not in their interests and the first scenario applies.

A contested hearing not only pits parent against parent, raising the temperature and the likelihood that each will make allegations against the other, but also takes up significantly more court time. Whilst the Ministry of Justice may not be moved by the plight of embattled parents fighting it out, they should at the very least be concerned by the court time that is being wasted by lengthy hearings with two litigants in person, or even one litigant in person in a case where one party is represented, conducting cross examination that can take double the time that a lawyer would take, and which could well have been avoided in their entirety if the parties had been legally represented at the outset.

Furthermore, the withdrawal of legal aid from private law proceedings has meant that expert reports (e.g. psychiatric report, hair strand testing for alcohol or drugs) cannot realistically be obtained, save in those rare cases where a lay party is able to fund the considerable cost of such a report himself. The court is therefore denied the benefit of expertise that can assist in determining what decision is in the best interest of the child.

There is an additional cost incurred by the court when both parties are litigants in person, namely administrative costs, for example in Portsmouth Family Court the court staff now take on the responsibility for producing the trial bundle when both parties are litigants in person, which not only takes up their time, but also incurs the photocopying costs.

The difficulty with a barrister or solicitor arguing these points, is that they are inevitably accused of self-interest; if legal aid were re-introduced for private law proceedings we would benefit.  While that is of course true, it ignores the fact that the lay parties who can will now spend money they can scant afford to pay privately for representation, so work does remain within the private law arena. What cannot be denied is that there is also a swathe of parents who cannot bear to bring a case to court themselves; they may be in fear of the other parent, they may have learning disabilities or they may simply find the whole process overwhelming. In these cases it is not only the parents that are being failed by our justice system, but the children.

It is heartening therefore to note that Judicial Executive Board, which comprises the most senior judges in England and Wales, has written to the Ministry of Justice (find evidence here) implying that the changes they have brought in have been counter productive.  They raise the same points I have set out above, as well as highlighting the negative effect that LASPO has had on security in courts, for example, each parent arriving with their clan, which can at worst descend into fisticuffs, which most county courts are ill equipped to deal with.

The Ministry’s response has been generic; according to their data: “Latest figures show family court performance is being maintained, with the average time taken to complete cases remaining steady since April 2013. We have listened closely to any concerns raised and committed to reviewing certain aspects of the scheme in response."

It appears that the Ministry is ignoring the concerns of even the senior judges and sailing on regardless.

I had an unexpected observer at a private law  hearing I conducted some months ago in Swindon, where both parents had paid privately for representation. It was Chris Grayling. I could not help but inwardly wonder whether he had observed any hearings that were not conducted by counsel or solicitor. It might be edifying for the Honourable Gentleman to sit through a day’s contested residence/contact hearing where both lay  parties represent themselves. One suspects, that like the senior judges, he may well find himself seeing the benefit of reinstating legal aid.

Zosia Keniston

For more information on Family Law, click here.