Tales from the street
For those of you that missed the campaign, legal aid in family cases changed drastically on 1 April 2013. Overnight the vast majority of people, whatever their means, became ineligble for help in non-care children cases or divorce cases. So, six months on, when unrepresented parents or spouses have become the norm rather than the exception, how is the family justice system doing?
I have seen some brilliant litgants in person -people who have clearly researched or taken advice on the law, read the brilliant guidance on the court website then prepared and presented their case well. This is however a minority. That is perhaps not surprising. There is a reason that we train for as long as we do to be solicitors. This job is hard.
Sadly but perhaps predictably, with legal aid restricted, there are some people that cannot access the legal system at all and feel that they have little choice but to take matters into their own hands. I have, for example, seen increased examples of parents not returning children after contact, snatching them from the resident parent or behaving aggressively when denied contact. These people very often then find themselves on the wrong side of emergency applications or the police: instantly on the back-foot in proceedings and at a disadvantage. Their point is often lost: overshadowed by conduct which the court cannot endorse.
There are also those that take the opposite approach - they throw themselves on the mercy of the court without a properly prepared application or evidence: with little idea of what legal remedies are available to the court and what they are seeking. However much the court may try to assist; it is not the job of the court to work out what the situation is, what a person should be asking for and then extract their case for them from that. You must come to court ready to clearly and concisely set out what the problem is, what remedy you are seeking and why the court should grant it.
The most common of all litigants in person in my experience are those that do manage to avail themselves of the court and do manage to put together a reasonably coherant case. However, very often those cases are not put together anywhere near as well as they could be. Knowing how to put a case: what to emphasise and what to leave out is crucial. It comes only from knowing the law and from long experience. You usually have very limited time in court. You do not want to be wasting time making submissions that at best do not assist your case and at worst undermine it by diluting and detracting from your best points. I have seen many applications where competant, intelligent litigants in person labour at great length points of almost no relevance whilst overlooking significant factors which could assist them.
My conclusion? Justice is suffering with the "Do It Yourself" approach - despite the valiant efforts of Judges, Magistrates and the Court Staff in trying to hold back the tide.
So what can you do about it? The easy answer for me to give is: get represented. There is still legal aid for children or divorce cases, in more circumstances and for more people than you would think. The criteria are very complicated. The best thing is to get in touch with a decent firm and have a chat, for free, to see if legal aid may be available or if not if there is a fee structure to suit you. What do you have to lose?
Too simple a solution? I accept that. I understand that in this climate there are plenty of people for whom legal aid will not be an option and who can't pay for private representation. What then?
My advice is get advice. I am seeing more clients that ever before who want perhaps an hour or so fixed-price meeting to simply talk about their circumstances and what they should be doing. Should they go to court? If so, how? What can they ask the court to do? How do they complete the paperwork? How will the court reach its decision: what are their best points which they need to be sure to hammer home and where are the holes in their case that need to be shored up?
This is something we have always been prepared to do for clients. It's not one size fits all advice and never has been for us as a firm. We know some clients may only need to visit us once or twice for key bits of advice (or for us to draft a complex statement for example) which boosts their confidence and ability to then go it alone. We are happy to give prices for fixed pieces of work where this is achievable without compromising our professional duties to the Court and clients.
In short, if you have got to go it alone; make sure you are going in the right direction.