Why ADR methods can never replace the true justice of legal aid

Well, well, well. What an unedifying mess the family courts have become.

Unrepresented victims facing their abusers; judges virtually having to act as bouncers to keep conflicted family members in check; no hope of additional funds to sort any out it out...

And just when it appeared the situation couldn’t get much worse, the Private Law Working Group (PLWG) – one of two groups commissioned by the President of the Family Division to look at how the court system deals with cases involving children and how it can be changed – threw its recommendations into the mix.

It was never going to be an easy task. After all, ahead of the launch of the public consultation on the recommendations, the President Sir Andrew McFarlane himself said: “The system is … trying to run up a down escalator. Everyone is working flat out but delays are creeping into the system.”

But the PLWG recommendations highlighted just how difficult it will be to make the difference needed to return the family court to its former glory.

Since the removal of many types of legal aid, a whole host of issues have emerged ranging from delays in the system to judges having to explain legal context to unrepresented parties.

The latest statistics from the family court show between January and March 2019 the proportion of disposals, where neither the applicant nor the respondent had legal representation, was 38 per cent – up 24 per cent since the same period in 2013 (incidentally, legal aid was abolished for most private family law cases soon after); and a rise of two per cent from the same period the previous year.

The additional support needed to assist such parties through proceedings, for example, judges needing to explain basic legal requirements, has had a knock-on effect on the speed at which cases make their way through the courts.

One of the solutions the PLWG has come up with is a “Family Solutions” service.

The aim appears to be to divert cases away from the courts which are bursting at the seams with people who, no longer having access to legal aid, are attempting to represent themselves.

There is a view that some relatively minor issues which have no safeguarding or welfare concerns, for instance, what day of the week warring parents should have care of their children, shouldn’t get as far as the courts.

Clearly mediation – which was intended to head these cases off and provide a partial response to the lack of legal aid – isn’t working.

While an alternative dispute resolution (ADR) model would provide a ‘third way’ for low level issues for which the current choice is mediation (where the parties can attend voluntarily) or court (adversarial, expensive and stressful), I can’t seriously see resources being put into some sort of dispute resolution service to the level required to make this work.

Even if they were, ADR isn’t always the answer – playing (as it sometimes can) to the strengths of the more dominant, more confident and more articulate party.

Another recommendation is, where possible, to place ‘returner cases’ back in front of the same judge, magistrate or legal adviser who heard the case previously, as soon as possible and ideally within 10 to 15 days.

This sounds fantastic in theory. In practice, however, the timescale appears to be somewhat unrealistic and doomed to result in even more unhappy litigants.

While I admit to a slightly pessimistic view, these recommendations are depressing because they are a classic example of how even the most creative solutions are unlikely ever to be successfully implemented, due to the same lack of funding that put us in this position in the first place.

The removal of legal aid for so many worthy recipients was, in my view, a mistake of such magnitude that I’m unsure whether our legal system – once the envy of the world – will ever fully recover.

I recently read of a free advice clinic provided by law students that reportedly has a six-month waiting list because people on low incomes struggle to get a solicitor. It made me reflect on the many changes that have taken place within the industry.

The love of money, as the saying goes, is the root of all evil.

But when it comes to creating access to justice, it’s the lack of it which is far, far worse.

David Kirwan is managing partner at Kirwans Solicitors