The gaping chasm

Earlier this summer, the Law Centers Network published its Law For All report, which highlighted a concept it referred to as the ‘hidden justice gap’.

The report identified the ‘squeezed middle’ – those unable to afford to pay for legal assistance but are not eligible for legal aid. 

I am certain that a large number of practitioners will have raised an eyebrow at the notion that the justice gap has hitherto been hidden. I’m also confident that I will not have been the only one to have scoffed at the use of the word ‘gap’. I think ‘gaping chasm’ would have been far more fitting (albeit emotive) terminology in light of the circumstances we are now in. 

There is no question that since the legal aid cuts began to bite, the situation has deteriorated exponentially. Combined with significant court closures, the resultant narrowing of access to justice for the economically vulnerable has caused the number of litigants in person to rise and, in turn put further pressure on an already overstretched and underfunded court system. 

The report found that millions fall into the ‘justice gap’ but may not realise this until they require legal help; and are then “forced to choose between no legal protection or falling into poverty”. The statistics for those at risk were:

• 44 per cent of working single people with no children.
• 51 per cent of working couples with one newborn child.
• 76 per cent of working single parents with one primary school child.

In my practice area of family law, it’s fair to say that the concept of access to justice has seemed hollow for some time. While it’s increasingly common for separating couples to deal with the resolution of their financial circumstances themselves where possible, matters concerning children are not so straightforward to navigate without professional support. 

All too often, I see clients in private children proceedings forced to go it alone when they desperately want and or need legal advice, because they cannot afford to finance the battle to overcome the hurdles thrown up by the other parent. 

Then there’s the significant issue of court waiting times. In recent months, I’ve experienced all-time lows in the family court’s ability to deal with matters in anything even resembling a timely manner. 

For individuals already experiencing one of the most stressful periods in their lives, having to wait for months on end for a substantive hearing (or even the approval of an order) undoubtedly exacerbates an already miserable situation. 

In matrimonial finance matters, the impact of unprecedented court processing and waiting times is distressing for the individuals involved. As well as prolonging a highly stressful situation, delayed access to judicial intervention often increases costs and acrimony. 

However, these problems pale in comparison to those cases concerning contact arrangements or other issues relating to children, where these delays can often be truly catastrophic. 

In the last month, I experienced two Children Act applications being listed outside of the six weeks from issue timeframe stipulated under the Family Procedure Rules 2010 (PD12B 14.1). More alarmingly, one was an urgent application which was ultimately listed for a first hearing almost eight weeks after issue.

On the ground, this delay means two months where a parent is unable to see their children; and two months
during which those children experience significant emotional harm as a result of being deprived of contact with a parent while being exposed to the almost certainly negative narrative from the other parent. 

There’s no question that the pandemic has compounded what was already a serious problem. However, the ‘justice gap’, whether it is experienced through a lack of funding, court availability or both, has been an escalating problem for almost a decade. 

There is a genuine and increasing concern among practitioners as to how much worse the situation has to get before those in power accept that a substantial change must be made.  

Pippa Allsop is an associate at Michelmores michelmores.com

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