Unrepresented parties become the majority in family cases

Topics: Family and children,Legal aid and access to justice

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More than half of all parties in child-related cases are unrepresented, data reveals today as the main part of family justice reforms come into effect.

Today sees the implementation of many of the provisions in the Children and Families Act 2014, including the single family court, a 26-week time limit for care proceedings, compulsory mediation information meetings (MIAMs) for separating couples and measures to limit the use of expert evidence.

Plans in section 11 of the act to introduce into statute the concept of ‘equal parenting’ when couples separate, have been delayed until the autumn. The Ministry of Justice said this is to ‘allow time to raise awareness and understanding’ of the change, and will ensure ‘wider support is properly bedded down’ before its implementation.

The Law Society expressed support for the changes, but warned that the benefits will be undermined by legal aid cuts.

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Law Society president Nicholas Fluck said that following the cuts many separating and divorcing couples cannot get access to legal advice to help them through the court process, or to find alternatives to court, causing delay as they have to represent themselves.

Meanwhile, MoJ data shows the impact on the courts of the removal of legal aid in most private law family cases in April 2013. The number of unrepresented parties, either parents or grandparents, in child-related proceedings has increased year-on-year by a third, from 25,656 between April and December 2012, to 34,249 between April and December 2013.  

In the most recent two months for which data is available, over half of all parties (52%) attending child-related proceedings were unrepresented.

The data, revealed in response to a freedom of information request by Marc Lopatin, founder of Lawyer Supported Mediation, shows that of the parties attending court in November 2013, 3,941 were represented while 4,174 were unrepresented. In December 2013 there were 3,481 represented parties and 3,840 unrepresented.

Despite the lack of public funding, parties are not deterred from using the court to resolve children matters; the number of parties attending at court has increased by 5% year-on-year.

Government plans to encourage parties away from the court appear to have failed. Figures given to Lopatin show a 40% fall in the number of publicly funded family mediations since April 2013, even though legal aid remains for mediation.

From May to December 2012, there were 9,216 mediations but that figure plummeted to 5,511 in May to December 2013.

Head of legal aid policy at the Law Society Richard Miller said: ‘The truth is emerging: far from stirring up unnecessary litigation between the parties, as was frequently falsely alleged as a justification for legal aid cuts, lawyers are very effective at steering separating couples away from the courts.

‘Without lawyers to resolve disputes less contentiously, more couples end up fighting in court, to their own detriment and that of the children of the families concerned.’

David Emmerson, head of family dispute resolution at London firm TV Edwards, said the family courts are heading for a ‘crisis point’.

‘The figures already show a marked increase in unrepresented parties and I expect this figure to worsen as the number of people with legal aid trail off,’ he said.

The thrust of the family court reforms being introduced today, said Emmerson, is to focus people on alternative dispute resolution – mediation and collaborative law. But he said the public needs to be made aware that such alternatives work, especially where lawyers are involved.

‘The government has a fear of lawyers in the process, but the more lawyers are involved, the more effective it is.’

Family lawyers’ group Resolution has called on the government to make public funding available for lawyers to provide initial advice in family cases, offering case analysis, screening for domestic violence issues and providing information about mediation options. 

Sarah Thompson, partner at Australian-owned Slater & Gordon said that mediation should be more widely used.

‘It’s cheaper, quicker and less stressful than going to court in 95% of cases.’ But she said it has to be a voluntary process. She supported the introduction of compulsory MIAMs, but said the timing of the session ‘at the eleventh hour before a hearing’ is too late.

‘By that stage the parties already have the mindset of going to court and see mediation as an additional hurdle and expense,’ she said.

Fluck noted: 'Mediation can help couples avoid the stresses and strains of court hearings, but it is not suitable in all disputes, particularly those where one party is in a significantly weaker position than the other.’

TV Edwards and Slater & Gordon are among 30 firms taking part in a year-long pilot of Lopatin’s Lawyer Supported Mediation, which kicked off in four cities this month.

It aims to provide fixed-fee legal assistance and mediation preparation, plus drafting for under £5,000 and is designed to help separating couples and demonstrate to lawyers the commercial viability of the service.

Commenting on the figures, an MoJ spokeswoman said there have always been a ‘significant number’ of people representing themselves in court and judges have the expertise to support them.

She said the ministry is ‘committed’ to making sure more people use mediation and provides ‘millions of pounds of legal aid’ to enable them to do so. Overall, she said, the ministry is ‘closely monitoring’ the impact of legal aid cuts. 

Readers' comments (20)

  • Do lawyers help or hinder parties in these circumstances? There never were such courts, other than for the very few, one hundred years ago and such people overcame their problems in other ways. I suspect the problem of broken homes may have come about, partly at least, because of the ability of parties to be able to afford to live separately.

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  • And that was it .....

    Pretty much the end of the end of the need for the High Street Solicitor firm.

    Let's hope the SRA manoeuvres itself into a position of regulating these litigants in person. They should be punished alng the lines of: - Compulsory Insurance (triple A rated, backed by Gold vaults and underwritten by the Queen of England (& Wales)) and lots and lots of nasty inarticulate emails demanding to know what they are wearing to court, had for breakfast, etc..., anything, just keep them from practicing any law.

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  • I think David needs to look up the status of women in marriage 100 years ago, which may explain why things were dealt with simply.

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  • The attacks on lawyers across the board continue unabated, with Simon Hughes saying today that he wants to keep lawyers out of family law issues as much as possible.

    Taken in the round the attacks on the English Legal System are reaching crisis proportions

    Leadership please

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  • I could fill pages of the nightmare of dealing with Litigants in Person, but more importantly the terrible effect it is having on children, on those subject to any type of abuse (normally the female sadly) and even the lawyers - we had 4 threats to kill a lawyer representing victims of abuse, one was at least sent to prison and one physical attack in Court by the LIP, within a month of this wonderful new world coming into being. It truly cannot continue. Scrap the millions being wasted on a new IT system and all the man hours that will be wasted on that particular exercise and plough it back into providing legal aid. The worst is yet to come I fear.

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  • The English legal system is being systematically undermined. Simple.

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  • "Commenting on the figures, an MoJ spokeswoman said there have always been a ‘significant number’ of people representing themselves in court and judges have the expertise to support them."

    In other words, 'we just don't care'!

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  • You're all (Lawyers) looking at this wrongly. Yes times are changing, but none of you seem to want to be proactive about it! All I read from this article is that there are now 4,174 people that feel that Lawyers are too expensive or they don't understand the services!!
    What about marketing to these people, or offering a two or five tier service. For £200 you'll tell them what to expect and fill the forms out for them, and you can bet that after the first traumatising hearing where they didn't have a clue what was going on they'll be back on the phone to ask you to come with them next time for £2k complete service. Make it clear to them you'll make sure this goes smoothly. You're all so wrapped up in the law you have forgotten the nuts and bolts of business. Get someone down to the busy courts handing out marketing leaflets - For christ sake what other businesses have a pool of potential clients nervous and approaching self realisation that they really really really actually shouldn't have done this alone!!! Even catch them at lunch, I bet some will want an immediate help in the afternoon?
    I know things aren't easy but just because they're not walking through the door doesn't mean they wouldn't want your service if you ask them at a better time. Just trying to help so pls be nice....

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  • Re: the above

    My leaflet and staffing fund is being enjoyed by my PII broker and the SRA's designs to make it even more difficult for Insurers to enter the market means that I should be preparing for "an orderly closure" rather than getting deeper into the sh*t.

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  • @anonymous -03.32 am:
    Gosh, what are you doing writing on readers comments at that ungodly hour !

    In any event, I think you will find that most solicitors would find it incredibly distasteful to hand out leaflets on the steps of the court or where ever even if we have a ready pool of poor mortals who would beg for our services at that time; quite aside from the fact that it is a breach of the rules as far as I am aware.

    In any event, believe you me, we fully understand that we are businesses - we have been at the harsh end of that prodding stick for some time now. However, as PROFESSIONALS, we choose to manage our businesses in a professional manner - if that puts us at a disadvantage to the cut throat commercial competitors then so be it.

    I for one, will not lower myself to compete with such ugliness that I sell my soul to the nasty side of commercialisation, thank you very much. That does not mean I am unwilling to change or haven't done so already. Nor does it mean that I am not willing to continue to strive to improve the way in which we work and become more client focussed. I am sure that the vast majority of my professional brethren are doing the same.

    The reality is that the public is being politically brain washed into believing that the legal profession is bad and that DIY law and mediation is good. Couple that with our leaders who are not self promoting or extolling the advantages of using Solicitors and barristers when necessary in an effective way, leads to a warped view of us as a profession.

    That is the true problem in our professional community.

    Let me put another way, if I may; it is not that we are not commercial, or that we are dinosaurs of a bygone era - it is that we choose not to indulge in engaging in today's fashion of mindless profiteering because we believe in and respect our profession.

    Back on topic, having attended the PRFD (sorry Central Family Court) yesterday, the first day of the new changes, not even on the List for reasons unknown, my 10 am, 30 minute hearing was finally heard at nearer to 5.00 pm due only to the willingness/kindness of the DJ to hear us then.

    The several contested matters before us were slow to move on because of the LiP's - and now my client is facing a hefty bill for all the time we wasted in court through no fault of his or mine.

    The victims in the absurd changes are not just the poor LiP's but the paying clients too.

    ....and somewhere there is a politician who thinks that mediation is a panacea, that is of course until they need to use the Courts themselves...

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