Family Law: The increase in people self-representing in Court

The statistics in this article are attributed to the 2014 Matrimonial Survey – Self-advocacy:  the rise of Litigants in Person, undertaken by Grant Thornton UK LLP (Chartered Accountants).

Respondents of the Grant Thornton survey were asked what the top three issues facing family law are at the moment.  23% replied the increased number of people representing themselves at Court (Litigants in Person – LIPs) due to lack of Legal Aid (Public Funding); 14% responded the Court are not fit for purpose; and 14% were of the view that the lack of Legal Aid for family law cases was a major issue.

Other responses in respect of the top three issues included the rights of cohabiting couples (13%); the promotion of mediation over other forms of resolution (10%), economic environment and availability of assets/liquidity (7%); dealing with the known or suspected concealment of assets (5%); enforceability of pre and post martial/registration agreements (4%); Law Commission recommendations to the Government allowing enforceable qualifying nuptial agreements (4%); the role of arbitration (1%); the interaction of civil partnership, same-sex marriages and existing family law (1%); proposals to increase Court fees in divorce cases (1%); and other (3%).

As well as 23% of respondents citing the increased number of LIPs as a top issue in family law, a further 14% stated the lack of Legal Aid was a key issue, making 37% respondents in total believing that the changes made to the Legal Aid Regulations in April 2013 had had a major impact on family law.

Many are of the view that, whether or not the increase in LIPs can be directly attributed to lack of Legal Aid, the removal of Legal Aid in the majority of cases has vastly reduced most people’s ability to access justice.

Some lawyers have expressed concerns that problems have been experienced when dealing with/helping LIPs and this has resulted in some Judges becoming frustrated.  Of course, Judges are, at times having to deal with some cases in which neither party is represented, which has a tendency to lead to Hearings taking longer to conclude, particularly as the Judges may have to explain some elements of Court procedure to the parties, thereby causing further delays, including to other cases, in the Court system.

In April 2014 the single Family Court was introduced, which was described as Sir James Munby, President of the Family Division of the High Court of England and Wales, as “the largest reform of the family justice system any of us have seen or will see in our professional lifetimes”.

Prior to April 2014 it was estimated that there were about 270,000 new family cases each year dealing with issues such as local authority intervention (Social Services/Care Cases), divorce, domestic violence and adoption.  There has been a reduction in the number of family cases being issued and, once again, this is largely believed to be due to the reduction in the availability of Legal Aid, meaning that many people are not able to access legal advice with a view to say, commencing divorce proceedings, securing contact with their children, etc.

Legal Aid is only now available for a handful of cases, which either meet the domestic violence criteria or involve the Local Authority.  The Legal Aid Agency does have the authority to grant Legal Aid in exceptional cases, provided the financial means of the party are below a certain limit, but such authority is only used very sparingly.

One of the intentions of the introduction of the single Family Court was to make various procedures simpler for LIPs.

The single Family Court was created in an attempt to address a range of shortcomings in the family Courts, including:-

  • Completing the majority of Care cases within six months, replacing the previous three-tier court system in family cases;
  • Requiring separating couples to attend a mediation awareness session before taking disputes over their finances or their children to court;
  • Introducing limits regarding the amount of expert evidence that can be used in cases involving children, with expert evidence only being permitted when it is considered necessary to ensure the case is justly resolved.

Changes were also brought about to the way children are dealt with in family cases.  Various labels which were previously used, e.g. Residence Orders, Contact Orders, etc., were abolished in view of the fact they were considered to focus on the rights of the parents rather than what was in the child’s best interest.

It was also hoped that the changes to the Family Justice System would ensure the right level of Judge was appointed for a particular Family Court case and that it is held in the most suitable location.  Of course, as pre April 2014, some family cases are still allocated to Lay Justices (Magistrates), who sit together with a Legal Adviser, who is legally qualified.

Whilst various online guides are available to assist people who do not have the benefit of legal representation, the whole system and procedure can seem very difficult without the assistance of legal advice.

If you require advice and assistance in relation to any family law problems, whether or not you think you may be entitled to Legal Aid, please do not hesitate to contact the Family Department at Emery Johnson Astills on 0116 255 4855.