Yesterday, the Commons Justice Committee heard ‘that litigants in person are not getting fair hearings’ in family cases. This is no surprise to family lawyers.
Since April 2013, when legal aid was removed for most private law family cases, there has been a huge increase in people either representing themselves, or using unregulated and, in some cases unqualified, individuals to assist them.
This obviously puts a person having to deal with divorce proceedings or contact arrangements at a disadvantage, as they are unable to pay for legal advice from a specialist family lawyer. However, it can also have implications for a party who is represented as their lawyer generally has to spend more time (and more of their client’s money) explaining points of law or procedure that the unrepresented party does not understand or is not aware of.
Matters become worse if the case proceeds to Court. The person making an application (the Applicant) is expected to prepare certain documents for the Court and take the lead in procedural matters. This can include drafting Orders and preparing Court bundles. If the Applicant is unrepresented, they are generally unaware of the required timescales and procedure for filing documents, the format of such documents and what can and cannot be included. If only the Respondent is represented, their lawyer is expected to take the lead in the proceedings, i.e. they would draft any Orders and prepare Court bundles. This leads to more time and expense with the legally represented party effectively footing the bill.
When there is a hearing, and parties are expected to give evidence in the witness box, matters generally become more difficult as a litigant in person does not understand the rules for giving evidence and cross examination. This leads to frustration by all concerned, including the Judge having to deal with the case. The problem is compounded, of course, if both sides are unrepresented.
Legal Aid can be granted in family cases but only in exceptional circumstances. Of the 125 applications received by the Legal Aid Agency between April and June this year, only 4 were granted.
Something needs to be done to help those desperately in need of legal assistance. Watch this space to see what, if anything, is done.