Unhappy state of affairs: the impact of family court closures

The government should make the best of the revised timescale for the court reform project to learn from recent mistakes, urges Pippa Allsop

There is no question that the erosion of the availability of legal aid has narrowed access to justice for the economically vulnerable. 

The number of litigants in person continues to rise and, although this increase must in part be due to the growing amount of free legal ‘advice’ available online, one of the primary reasons people choose to represent themselves continues to be simply because they are unable to pay for legal assistance.

In turn, increased numbers of litigants in person puts additional pressure on an already overstretched and underfunded court system, often (through no deliberate act of their own) exacerbating existing delays and costs. Precisely the result, ironically, that the LASPO 2012 was designed to address.

However, the lack of financial assistance in obtaining legal advice is not the only obstacle to access to justice. 

In 2016, the government launched HMCTS into a £1bn project of ‘transforming’ our legal system, most of which involved dragging that antiquated beast kicking and screaming into the world of digital and video technology. 

The overarching aim of the reforms was to modernise while building on the core strengths of the justice system, to be just, proportionate and accessible.

Of course, it also involved the closure or merging of hundreds of courts and tribunals in the UK, which has quite understandably raised questions among many about how the ‘access’ part of the transformation is being met. 

Geography is not the only concern, though, and on-going criticisms led to the Commons Justice Committee holding an inquiry into the reform programme, “to consider the progress made with the reforms so far and the implications of planned changes, particularly in relation to access to justice [emphasis added].” 

The committee chair expressed that they were “worried about the access to justice implications” and, given the level of evidential submissions they received, this concern was not without foundation. 

The Law Society’s response, despite indicating that they were “broadly supportive of the court modernisation programme”, was predominantly critical of the approach and progress thus far.

The proposed reforms, it says, will have an impact on access to justice across the justice system and particularly on the digitally excluded. 

Closing the courts before the technology intended to replace the need for physical hearings has been tested is also not acceptable. 

Chancery Lane is also concerned about the lack of information on the HMCTS website to external online advice or specialist services. 

Finally, the court closure programme itself has already had an impact on all court users and therefore adversely affected access to justice. 

In my own practice area, there is absolutely no doubt that the reforms thus far have impacted very negatively on the efficiency of the family courts.

In his keynote address at the Resolution conference in April this year the president of the family division, Sir Andrew McFarlane openly acknowledged the failures of the court reform programme and the “wholly unacceptable service” currently provided by many of the ‘streamlined’ regional divorce centres.

He spoke of the “unhappy state of affairs” caused by the “delay and inefficiency, measured in terms of months rather than weeks, over the past year or more because of the move to centralisation.”

I can say from experience that it really has been painful for all involved. People should not be forced to represent themselves solely due to lack of financial assistance. 

There is an obvious problem of the division in our justice system between those who can and those who cannot afford legal assistance. 

There is increased potential for the justice system to do litigants in person a disservice from the outset, and it also puts the system under more strain, which currently, it simply cannot bear.

While it is unlikely that legal aid will be reinstated to its former self, there remains hope that the court modernisation reforms might help alleviate the problem through other means. 

The deadline for completion of the project has been extended to 2023, so perhaps the failings of the previous three years can be learnt from and converted into meaningful successes in the next four.

Pippa Allsop is an associate at Michelmores michelmores.com