Litigants in person should have access to legal advice in the initial preparation for court proceedings, a new Ministry of Justice report recommends.
The ‘best practice’ was one of a number of recommendations made by law academics, commissioned by the MoJ to provide evidence of the experiences and support needs of litigants in person in private family law cases.
The study focuses on the experience of litigants in person before legal aid reforms were introduced in April 2013, which saw the removal of most family law cases from the scope of legal aid.
Anticipating a rise in the number of litigants in person, the research was designed to inform MoJ policy and practice responses.
The research identified the need for both practical support and tailored legal advice. Practical support, the report said, includes help with paperwork, advocacy in court and evidence-gathering. Litigants in person also need help framing their case in legal terms, including knowledge of the legal rules and the parameters of legally possible outcomes.
While highlighting three alternative approaches to providing such practical support - train litigants in person to becoming quasi-lawyers, provide a lawyer-substitute, and/or change the court process so it is not reliant on lawyers doing all the work - the report stated that none of the approaches offered a complete solution for all cases.
’This section therefore concludes by identifying circumstances in which practical support and legal needs are so great that there is no adequate substitute for providing a lawyer in order to enable a just and efficient outcome,’ the report said.
Looking at how helpful McKenzie friends were, the report said within the ’paid’ category, levels of qualification and motivation were ‘variable and sometimes highly questionable’. ’In contrast with the positive contribution of the informal McKenzie friends, the three paid McKenzie friends made a mixed contribution,’ it said.
The researchers acknowledged that the observation sample of three McKenzie friends was small, ’but the concerns about personal agendas and issues of competence were also recurrent themes in the interviews and focus groups with family justice professionals based on their personal observations’.
The report recommended that consideration be given to developing a code of conduct, practice guidance or regulatory framework for paid/’professional’ McKenzie friends.
Other recommendations included:
- Re-evaluation – and potential redesign – of all family justice communications from the perspective of litigants in person;
- Creation of a single authoritative ‘official’ family court website containing all the resources a litigant in person needs in one place;
- Measures to ensure greater availability of and access to exceptional case funding;
- A mechanism to enable judicial recommendation for the provision of publicly funded representation in the interests of justice.
The report also stated that follow-up independent research is needed to examine the impact of legal aid cuts on the types and experiences of litigants in person, their impact on the court system, and the effectiveness of innovations and services to support them.