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Unintended consequences of family justice reform

Byron James, barrister, Fourteen considers some of the less publicised consequences of the reform of the family justice system

Byron James, barrister, Fourteen

Following changes to the family law justice system, reports of attacks on judges in courtrooms are becoming more widespread, judges themselves are being required to perform a role beyond their judicial office and all the while it is those seeking to redress an injustice in their family life that lose out.

The last few years have seen dramatic and unfortunate changes to our legal system. The ultimate goal is the significant reduction in the provision of legal services which the government offers. This is commonly reported as being applicable to legal aid, the availability of which has been subject to a dramatic decrease. In family law cases, where once you could find able lawyers on both privately and publicly sides, now one struggles to find a legal aid lawyer at all.  It is consequently the vulnerable and impecunious who lose out, something very difficult to justify or endorse.

Much less well publicised are the changes being made to the provision of court services. There has been a long running campaign to encourage individuals to resolve matters away from the court service, through either mediation or arbitration; the benefits of this being advocated as being less adversarial and even empowering for those involved. There will always remain however cases which are complex, made difficult by the emotions running through a case or, say in a divorce, by the nature of the assets at hand and the principles surrounding their division.  These cases are not simply capable of resolution through the parties talking it through (mediation) and may not have sufficient funds to afford private court hearings (arbitration). Irrespective of how far the Government seeks to remove these cases from the court system, it belies the significant progress and fair outcomes that can be achieved through the court process, assisted by able professionals.

The role of the family lawyer at court is one of the most misunderstood roles in the legal system.

At the end of May this year, the Judicial Executive Board, comprising the most senior judges, gave evidence to the Commons Justice Select Committee enquiry into the effect of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The content of this evidence was worrying, but not surprising, for anyone with exposure to the operation of the justice system.

They commented on the increased pressure on the system and identified the main cause as the decline of legal representation in certain cases to such a dramatic extent that in some, such as private law children cases, legal representatives are now considered 'a rarity'. The consequences of this on the operation of justice are manifold: the increased strain on the administration of justice, the increased length of court hearings, the increased number of wrongly made applications, the lack of funding for experts and an increase in cases not settling and being fought on unmeritorious grounds.

This evidence is supported by the Ministry of Justice's own figures.  Between 2011 and 2013, the amount of cases in which both parties were represented in a private law children case steadily fell from 38% in January 2011 to 24% in December 2013; with, conversely, the amount of cases in which neither party was represented increased steadily from 17% in January 2011 to 29% in December 2013.

The figures appear to have only become worse since December 2013. The March 2014 District Judge survey, involving direct reporting from 64 District Judges concerning cases before them in over two weeks in March 2014, found even higher figures. Both parties were represented in only 24.4% of cases, whereas neither party was represented in 32% of cases. Of those cases, it was found that a third required some level of expert evidence, with drug, alcohol and psychological issues being by far the most relevant, and ones which are not directly relevant to the accessing of legal aid.  The solution in just under half of the cases where an expert was needed was for one party to simply pay, this being applicable only in the 43% of cases where only one side is represented. In 24% of the cases in which an expert was necessary, it was also not affordable for the parties involved.

It appears not a matter of costs saved on cuts to legal aid but rather costs reallocated to making the administration of justice more expensive; rendering in the process the quality and effectiveness of the outcomes produced by that system of administering justice far poorer. 

One of the unintended victims of the emerging new legal landscape is the judges. Where once judges could rely upon both sides to be well represented, irrespective of their finances, there is now quite clearly a four tier system in operation. The first tier are the super-rich, who can afford private hearings through arbitration held in private locations away from court buildings, the best way of ensuring a more efficient service and privacy from the media; the second are the level below the super-rich, whereby there is sufficient funds for legal representation, whether through the assistance of family members, personal finances, or a legal fees order brought by one party against the other; the third tier is where a party does obtain legal aid, although the circumstances for this are extremely limited and have to require allegations of domestic abuse to be made and the fourth and final tier is the litigant in person, who has no legal assistance whatsoever.

Judges now have to deal increasingly with cases involving  litigants in person, and more and more often, with litigants in person on both sides. This presents significant difficulties for the court process (not to mention the parties). The wrong application may have been made, the court may not have the power to do what is being asked of it; there may be no papers to assist with what is factually happening in the case, there may well have been no productive discussions on the matter outside court or before the hearing. It may be that the level of animosity or power imbalance between the parties is such that they are simply not capable of speaking to one another.  Time is now being spent trying to work out what the problem between the parties is, whether it is capable of resolution and how the parties might go about resolving it. This process can involve the judge trying to understand years of acrimony in just a thirty minute appointment.

Following the closure of over a hundred courts around the country in the last few years, it is rare to find a judge's court list which is not packed full. Consequently, their time is more valuable than ever but overrunning and overstepping the role of judicial office are now commonplace and, frankly, required, given that in my experience, most family judges are humane and care deeply about ensuring that justice is done in their court.

Judges are rendered vulnerable by the layout of the courtrooms, which are often informal, small rooms, akin to school classrooms, and often with only a table between the judge and parties. Without professional guidance or support it is hardly surprising that some Litigants in person, confused by the system, frustrated by misapprehensions about decisions made, can become very angry and in extremis even temporarily out of control. More and more reports of attacks on district judges in their courtrooms are being made; an unintended and serious consequence of the court reforms.

A hearing in the Southend County Court in October 2013 saw a Litigant in person father attack the mother whilst the District Judge was actually giving judgment. This involved him punching her about the head, throwing her to the floor, kicking her and grabbing her hair. He was convicted and sentenced to prison for two years. A subsequent application for his committal was made for penalties specifically referable to the circumstances of the assault (Re Ramet Application for Committal for Contempt of Court [2014] EWHC 56 (Fam) but it was held that such additional penalties, beyond those imposed for the relevant criminal offences, were not available and that consideration should be given as to whether there should be consequent changes to the procedural rules. One wonders whether focusing on punishing is missing the point somewhat. Ensuring that these increasingly common instances are avoided in the first place should be the priority, the insertion of a new clause in the FPR 2010, unlikely to even be known to most litigants in person, does not promise especial effectiveness as a deterrent.  

Every day there are legal professionals working against the negative aspects of court reform to try and provide those who require recourse to the judicial system with outcomes that are fair and appropriate to both the parties concerned and their children. The role of the family lawyer may be misunderstood and undervalued by those making court reforms, but it certainly is not by those who have to rely on them.

The court process is heading in a worrying direction, and ultimately it is those who seek to redress unfairness in their family lives who will miss out. It will be the wife whose husband asserts impecuniosity behind hidden wealth, the father who hasn't seen his children for a year because of an intractable dispute or the cohabitant who seeks to protect their interest in a property when their name is not on the title deed. These injustices will prevail and multiply, and it is asking too much of judges to do the work of lawyer and advocate as well as their own.