Going it alone: facing the family court without legal representation

The growing numbers of litigants in person in the family courts is having a major impact on the dispute resolution process in general and on those involved in particular, including lawyers, says Carla Ditz

Litigants in person in the family courts are an ever-increasing category of individuals. According to the latest Ministry of Justice statistics, covering April – June 2018 and published last September, the proportion of disposals where neither the applicant nor respondent had legal representation was 38 per cent, an increase of 21 percentage points in five years.

With the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) in April 2013, many individuals found themselves no longer entitled to public funding for their case which, for most, meant having to navigate the court process alone.

What was already an overwhelming and confusing personal situation was then made worse by the fact that suddenly, individuals were facing the family court with no knowledge of how it worked nor their legal rights. The situation has not changed nearly six years on.

On 7 February 2019, the government published its long-awaited post-implementation review of legal aid. While the review makes proposals for improvements to the system, rather than further cuts, there continues to be widespread criticism of the stance the government has taken and the basic right of access to justice, which many say is being obstructed.

In 2017, the Law Society conducted its own review, ‘Access Denied? LASPO 4 years on’ and made the following findings:

• Legal aid is no longer available for many of those who need it;
• Those eligible for legal aid find it hard to access it;
• Wide gaps in provision are not being addressed;
• LASPO has had a wider and detrimental impact on the state and society.

A number of recommendations were made to the government, in anticipation of the government’s own review. These recommendations included the highlighting of ‘advice deserts’ and the need for the restoration of early advice, something which could go some way to getting the parties on the right path from the outset.

As part of the proposals, the government’s review has announced a Legal Support Action Plan which sets out a number of steps the Government intends to take with a view to improving access to legal support services.

The plan includes bringing forward proposals to expand the scope of legal aid for certain categories such as special guardianship orders and crucially, a commitment to review the means test.

System in decline

Recent statistics released by the Ministry of Justice in December 2018 demonstrate further a system in decline. Mediation Information and Assessment Meeting (MIAM) volumes were 5 per cent lower than in the same quarter of 2017.

Attendance at a MIAM is compulsory prior to issuing certain proceedings in the family court unless the applicant qualifies for an exemption such as child protection concerns, urgency or there is domestic abuse.

With the latter example in mind, applications for civil representation supported by evidence of domestic violence or child abuse increased by 12 per cent between July and September 2018.

The statistics also reveal that mediation cases in the same period decreased by 3 per cent (compared to the previous year) and are now running at just under half of pre-LASPO levels.

MIAMs were introduced in April 2011 and made mandatory in April 2014 with the intention of raising awareness of alternative means of dispute resolution (mediation in particular) and ultimately, increasing the take-up of out-of-court process options.

It cannot be said that this has happened. Notably, there has been a move towards facilitating the administrative side of the court process by making it possible to commence divorce proceedings online rather than on paper.

The pilot which started on 1 May 2018 (Family Procedure Rules 2010 PD 36E) allowed LIPs to submit their divorce application online.

The next stage of the pilot took effect from 14 January 2019 (FPR 2010 PD 36L) and will further extend the ability for LIPs to lodge court applications online (such as applying for a Decree Nisi) and also the service of certain court orders online wherethe user has confirmed they are happy to be served in this way.

Courtroom dilemma

The courtroom can be a daunting place where outcomes easily become uncertainties. The reality is that many individuals, unable to afford legal representation, are forced to attend court and present their own case before the judge.

Matters can often be made worse where both parties are present without representation, which is certainly not uncommon. Some court hearings such as a financial dispute resolution (FDR) hearing are designed to encourage settlement and promote an agreed solution (in the same way as mediation does) rather than impose an outcome.

But undoubtedly where a couple has already been unsuccessful in reaching an agreement behind closed doors, for many the courtroom is an even less likely a forum for mutual agreement, particularly where both parties are unrepresented.

Individual cases can spiral out of control as a result. In its 2017 report, the Law Society noted that judges have estimated that court hear- ings involving LIPs take approximately 50 per cent longer on average and that fewer cases get ‘filtered out’ than otherwise would – had the parties had the benefit of legal support.

For practitioners, more often than not, it can prove tricky when you are faced with a LIP on the opposing side of a case. Care must be taken to make sure correspondence is communicated clearly and crucially, that the LIP is advised to seek legal advice on the content of any correspondence and documentation.

In some cases, it may be appropriate for the legally represented party, if any, to assume responsibility for the preparation of any court bundles for example, even if they are not required to do so.

Facilitating the process in this way can help in a number of ways, with a case possibly running more smoothly as a result – certainly from the administrative side – and demonstrating to the LIP cooperation and hopefully a shared goal of resolving matters efficiently.

Understandably, many LIPs have a limited understanding of how the courts operate, the various stages in proceedings and what steps they themselves need to take. Explaining the structure and court process and any practical points to an LIP at court can also make a difference.

Following on from the govern- ment’s recent review of LASPO, there is a commitment to enhance the support offered for litigants in person as well as launching a pilot to explore how it can better coordinate and signpost legal support.

Impact on parties

While financial cases are about dividing assets between the parties and securing a financial future, matters involving residence and access to children are far more emotive issues and a bad or unworkable outcome will have lasting effects for the child’s relationship with their parents.

Months can go by without a court hearing with tension growing between the parties and matters left unresolved through lack of constructive communication. This is potentially harmful to the relationship as between the parents as well as the relationship with the child and stability thereof.

Loss of representation in such a case has the potential to produce damaging, dangerous and long-lasting effects which can be hard to undo if at all. Services such as the Personal Support Unit (PSU) and Citizens Advice provide much-needed, although limited, assistance to LIPs.

LIPs can access free legal advice from Citizens Advice (a maximum of 3 x 45 minute sessions) while the volunteers at the PSU provide emotional and practical support. This only touches the surface of what is a deeply concerning issue faced by separating families.

For family practitioners, who see on a daily basis the impact of family breakdown, it is troubling that much needed resources have been withdrawn as a result of LASPO.

This void is met with an ever-present circumstance of relationship breakdown, financial disputes and matters concerning children and parenting where legal assistance can go a long way to helping resolve matters in a less confrontational and more efficient way.

Carla Ditz is a professional support lawyer at Family Law in Partnership flip.co.uk