Tackling the rise of litigants in person in family cases

In July 2009 a meeting of all the main representative groups and others concerned with legal aid policy, including Legal Action Group (LAG), was called by the then legal aid minister Lord Bach. The purpose of the meeting was to discuss ways of saving cash in the legal aid system. The message from the government was blunt. The legal aid budget was under pressure because of the impact of the recession, the baby Peter case which had led to an increase in child protection cases and the high volume of Crown Court cases.

At the time Lord Bach said he believed that they should have gone further at the meeting and discussed the stark policy options they were faced with. In Bach's view such was the pressure on the legal aid budget it was likely that the government would have to look at big cut-backs in scope to satisfy the Treasury. Chief among the cuts, which were being discussed in the Ministry of Justice (MoJ) he said, was the loss of all family law cases, apart from those involving care proceedings and child abduction. It is clear then, that whichever party or combination of parties had won the general election in May 2010, family law legal aid would have been in the sights of the MoJ and Treasury for a drastic cut. However, Richard Miller, head of legal aid policy at the Law Society argues that by cutting legal aid for family work the government is at risk of 'taking the oil out of the engine, because lawyers make the system (family courts) work.' He might have a point.

Ryder reforms

In August 2012 Mr Justice Ryder published his recommendations for reform of the family courts which include a single family law court, more active case management by judges and the increased use of mediation. He and others, while acknowledging that the system needs urgent reform, are concerned that the cuts in legal aid will lead to a large increase in litigants in person who will take-up more court resources. Last year there were 109,656 private law family cases. The majority of these will be cut from scope leaving only the public law family cases (see appendix 6 of 'Austerity Justice').

The numbers of mediated settlements are increasing according to the family lawyers group Resolution with 15,319 in 2011/12 (up 8 per cent on the previous year) and in one of the few enlightened initiatives from the MoJ in recent years, they are increasing the cash available for this by £10m in April 2013.

No one in the family justice system disagrees that the government are right to try and encourage mediation in disputes over divorce settlements, custody arrangements and the other legal problems that accompany relationship breakdowns. Many warn though, that there is only so much a change of policy toward mediation can achieve. Those counselling caution include Helen Grant MP, the newly appointed minister in the MoJ. In a debate on the LASPO Bill in June she warned that judges and tribunal members did not have the time the government thought they had to assist litigants in person, and that mediation frequently failed.

The courts service is also facing a 25 per cent cut and so is likely to add to the enormous pressure from litigants in person once the legal aid changes are implemented.

Foreign experience

Looking at other common law countries might give a useful insight into what is store in the UK. Bonnie Hough works for the courts service in California. She told LAG that the numbers of litigants in person in child custody and divorce cases has been rising and is currently running at 80 per cent and that the numbers were going-up. 'Many litigants might start their cases with an attorney and then the money runs out,' she says. In keeping with most of the US, California has a very limited legal aid system which does not cover family cases. According to Hough the courts system has had to respond to the problem of litigants in person taking up court time by introducing self help and legal education schemes to assist them. In 2003 for example $11m were spent on a system of salaried attorneys to provide support in cases involving child maintenance and other issues related to divorce.

LAG is not saying this is comparable to spending on legal aid in such cases in England and Wales, but what has happened in California illustrates that in the absence of legal aid, or taking the oil out of the system, the courts system is likely to feel compelled to find solutions to assist litigants in person which will cost public money.

The sort of self-help and legal education services available in the courts in California may increasingly be seen as a big part of the future in England and Wales, but they do not necessarily lead to better access to justice or savings to the public purse.