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Legal Aid used to help with the costs of professional advice for people who could not afford it, however in April 2013, the justice system in England and Wales changed dramatically.
Cuts to the legal aid budget, designed to save around £350m a year, meant that many civil and family law cases no longer qualified for funding to cover the legal costs of those involved. This included funding for divorce cases and some cases of historic abuse.
On 30th March, the BBC’s Panorama programme ‘DIY Justice’ covered the impact that these cuts have had to ordinary people hoping to bring their cases through the courts. Following a handful of litigants in person in the run up to their court appearances, the programme makers also spoke to former justice secretary Kenneth Clarke and retired judge Sir Alan Moses.
After viewing the programme, Rebecca Finnigan, a Solicitor within the Divorce & Family Law Department at Canter Levin & Berg Solicitors and an accredited member of the Law Society’s Family Law Panel, offered her thoughts on the issues raised:
“This week’s Panorama demonstrated the difficulties faced by litigants in person (people who represent themselves) when going through the family court process.
The programme began with the case of a lady who had a diagnosis of bipolar disorder, and sought her daughter’s return from the care of the child’s father. She was not eligible for ‘exceptional case’ legal aid and despite her serious mental health condition she was left in a situation where she had to represent herself and present her own case to the court. It was clear that this was a traumatic experience; it was apparent she had difficulties in expressing herself in court and as result she felt that she had not done a good enough job in presenting her case.
We saw another mother who was told she was not eligible for legal aid because although the child’s father had a criminal conviction for assaulting her, this was more than 2 years ago and was therefore not relevant to securing legal aid. This really did concern me, because the information given was inaccurate.
It is in fact the case where the other party has a specified criminal conviction for a domestic abuse offence against the other, then that is relevant for applying for legal aid so long as the conviction is not ‘spent’. As a result, this mother had to represent herself and was left in a position where she had to cross-examine the child’s father, who had a conviction for a violent offence against her. Predictably she found this extremely daunting, and again felt that she was not able to do justice to her own case as a result.
That is not the whole story though. We did see a father who as a litigant in person, successfully argued that he should have more contact with his children. It was also apparent that this was an intelligent and particularly articulate man, who, having been unemployed for the last 4 years, had used his time to dedicate himself to becoming a lay-expert in family law. The camera even focused on some of his reading literature, including the book by “Mr Loophole”, although I remain unconvinced of the application of this particular style of law to family proceedings!
Whilst this demonstrates that acting as a litigant in person is not an automatic recipe for disaster, it must be said that we were not told of any complicating factors in his case, such as mental health problems, domestic abuse falling short of the threshold for qualifying for legal aid, or extremely high emotion.
What summed up the programme for me was the moment when the presenter said that this particular father had “won” his case. It is a long established principal that there can be no such thing as winners or losers in children law cases and it is clear that for litigants in person they feel very much that if they do not achieve the outcome they were hoping for, they have “lost” their case. It compounded my personal belief that the lack of legal aid to very deserving parties is not about depriving them of ‘equality of arms’ against parties who do qualify for legal aid, or who can afford privately paying legal representation.
The lack of legal aid places some of society’s most vulnerable people in positions where, despite the very best efforts of judges who are sympathetic and sensitive to the difficulties faced by litigants in person, they do in fact very often feel powerless, unable to articulate themselves fully, intimidated by a complex process, and ultimately many are left feeling that justice has not been done as a result.
Again, this does not necessarily mean that legal aid should be available so that everyone has ‘equality of arms’, but what the severely restricted availability of legal aid demonstrates, is that for very many reasons vulnerable people do not feel confidently able to articulate their cases. This results in a feeling amongst many people who are going through the family courts, that justice has not been done and that their children’s best interests have not been served.”