This is a guest post by Jess Mant, a lecturer in law at Cardiff University, who has undertaken research directly with unrepresented litigants about their experiences in family courts. Jess was recently quoted in a Financial Times article, ‘Justice for All?: inside the legal aid crisis’
“The few litigants I interviewed who felt the court hearings had gone in their favour very much felt they had scraped through and got lucky …It’s like playing a game where everyone else knows the rules and you don’t.”
The reforms to legal aid in England and Wales have been the subject of significant controversy since their implementation under the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act in April 2013. In many ways, this has marked a fundamental shift in how different people are now able to access and use law, particularly in terms of family law. In my recently completed PhD research, I examined the specific ways in which the cuts to legal aid have impacted on people’s experiences of the family court process. As part of this project, during 2017, I interviewed 23 people about their experiences of using the family court as a litigant in person (LIP). During these interviews, it became apparent that without legal aid, LIPs experience significant barriers to justice due to the various ways in which the court process itself is now unable to sufficiently support and accommodate the lay individuals who find themselves within it.
Of course, the system of legal aid was never perfect – in practice, there was always a significant number of individuals in a margin where they earned too much to be eligible for legal aid, but still could not afford to pay for their own lawyer. Post-LASPO, however, funding for advice and representation in private family law is available only in exceptional circumstances of domestic abuse. In practice, this means that this margin has been expanded to incorporate the majority. This majority includes those on extremely limited incomes, as well as those contending with learning difficulties, mental health issues and domestic abuse which – despite some legislative progress – still cannot be evidenced under the current criteria.
This shift from widespread availability of support to exceptional provision is an approach taken by recent governments to limit state expenditure, particularly on public services which promote social welfare, which are de-prioritised in the current austerity-driven political landscape. LASPO is underpinned by a strong political message to citizens to ‘take greater responsibility’ for their own legal problems, and to expect to be able to rely on legal aid only in exceptional circumstances.
.According to statistics released by the Ministry of Justice, more than 80% of private family law cases now involve at least one LIP. However, there has been minimal investment of finances or attention into the ways in which the court process may need to be adapted in order to ensure that LIPs are accommodated and included in the process. Rather, people who need to access and use the family courts – for instance, in order to settle disputes about where a child should live or how much time they should spend with each parent – must do so without legal guidance.
Shift from Advice to Information
Legal aid traditionally provided individuals with a starting point from where to understand their practical options, as well as the means to pursue those options if necessary. However, without this early legal advice, many are not informed about the benefits of mediation, or indeed about the potential legal protection available to them through the courts.
Instead, LIPs are left to seek free or pro bono legal advice which is occasionally offered by law firms, or assistance from free face-to-face or online support. The burden to facilitate participation in the family justice system is therefore falling to many underfunded, overburdened organisations like the Personal Support Unit, Citizens Advice Bureaux, and domestic abuse services such as Rights of Women and Women’s Aid. Similarly, there is an increasing wealth of online support being developed to support LIPs by giving information about different court orders, what to expect at court, and how the court process works. However, without legal aid funding, what is on offer for most is not advice, but information – and even that may be difficult to come by.
In my research, the common difficulty that LIPs had with both these sources of support is that they had to ‘push’ to access them, and ‘jump’ between different services to find different kinds of help. Often, face-to-face support is limited by time and geographic location, which can mean fundamental difficulties for those with mobility issues and limited financial resources, as well as those with limited time to spare. If you’re a single mother of a young child, working on a zero-hour contract, there are simply not enough hours in the day.
Although online resources may be more helpful for people in these situations, these sources are also characterised by barriers such as access to the Internet and learning difficulties, as many people have difficulty processing written information. Importantly, existing research conducted by Pascoe Pleasence et al has already indicated the extent to which experiences of poverty, mental health issues, and isolation tend to intersect and compound each other. As a result, those who are no longer eligible for legal aid are in practice those who may have greater difficulty accessing this information, let alone legal advice.
Self-Representation in the Family Court Process
The reality of the post-LASPO advice context, therefore, effectively means that people are now coming to court with very different levels and kinds of information. While some people may be able to get information or even a small amount of free legal advice before their hearing, others may simply turn up on the day with nothing more than all the paperwork they have received from the court. Without knowledge of the law that applies to your case, or the procedure you are expected to follow, it can be impossible to put together an argument or even follow the conversations which take place in the courtroom.
An important consensus among interviewees was that, despite the best intentions and efforts of judges, there was little consistency in the way they dealt with LiPs. Judges appeared to vary in terms of the approach they took to explaining aspects of the process and balancing hearings where the other party was represented by a lawyer. As a result, LIPs were often left feeling excluded from important conversations, without a lawyer to translate or contribute to legal negotiations on their behalf. An important point to note here, is that it seems that little guidance is available for judges on how to deal with these issues, particularly given the differing levels of knowledge and diverse circumstances of the LIPs now coming before them.
Even aside from the ways in which LIPs feel disadvantaged without access to legal knowledge, the practical barriers to participating in the court process cannot be underestimated. For example, LIPs are expected to verbally advocate their position – to stand up in hearings and make coherent and reasoned arguments about inherently emotional and distressing issues. This requires LIPs to communicate their points in an unnatural and potentially inaccessible format – for example, many interviewees were unable to do this as a result of a range of different pre-existing issues like communicative problems, anxiety or learning difficulties.
On top of this, many interviewees were also required to participate in the process of cross-examination. Despite multiple pledges to do so, the government is still yet to introduce provisions that would prevent cross-examination between alleged perpetrators and victims.
In the original LASPO consultation, the government stated that family law was an area in which they did ‘not routinely expect’ issues to be too emotional or complex for self-representation. However, for these interviewees, their time in court was often wholly traumatic, and led most of them to explain that they would never return to the family court process even with representation, because of the ways in which the process itself had actually facilitated further experiences of abuse.
The potential exclusion of LIPs from family law is therefore a concerning consequence of the emphasis that has been placed on individual responsibility under LASPO. It became apparent during this project that LIPs are now self-representing in a range of chaotic and intersectional circumstances which are not recognised under the current legal aid scheme. Further, the court process itself – despite the efforts of the professions, judiciary and third sector – is struggling to accommodate the individuals now appearing as LIPs. Due to the failure of policy to acknowledge the barriers to participation that exist for many individuals, it may be impossible for many to make meaningful use of the family justice system even if they are able to access it. Further, these findings also highlight the negative perceptions which may now exist about the capacity of the justice system as a whole. It suggests that the post-LASPO family court process may not only be unsuitable for many of its users, but importantly runs the risk of no longer being perceived as a route through which to obtain protection and resolution.
Further information about the research and a copy of my preliminary research findings can be found on the LIP Network