JY v RY: An Indictment of the Impact of Legal Aid Cuts
Matthew Richardson, barrister, Coram Chambers explains why a case, described by the judge as ‘the most unsatisfactory’ he has heard and in which ‘had one or both of these parents been represented … probably the outcome would have been very different’, serves as an alarming lesson in just how far our justice system has fallen.
Matthew Richardson, barrister, Coram Chambers
In JY v RY [2018] EWFC B16, District JudgeJ Read publishes a judgment that makes for hugely worrying reading. Publication has come of DJ Read's own volition, it seems, and the judge must be commended for bringing to light such an example of what, sadly, is happening far too often in family courts across England and Wales as a direct result of the cuts to funding for legal aid representation.
It is hard to begin to imagine what it must be like to enter the family court arena as a member of the public faced with seeking, or defending, allegations as serious as those litigated in this case. The mother's allegations against the father included threats and intimidation, verbal abuse, physical assault of children, physical and sexual assault of the mother, and an allegation of rape (with the children asleep at the time in the same hotel room). Consider the magnitude of the task involved in preparing to run a fact-finding trial on ten allegations of verbal, physical and sexual assault allegations:
- Gather third party evidence, including from the parties' relatives
- Chase the police for copies of their documents (which were not received until shortly before the hearing, which itself was the third attempt at a trial due to the previous non-disclosure from the police), which are from the investigation they undertook when the allegations were made initially, and which include accounts of the interviews that the police did with the parents and the children
- Particularise a detailed set of allegations and write a supporting statement – cross-referencing the third-party evidence you have gathered – to explain them
- Consider the witness statement – denying everything – from the other side
- Collect all the paperwork, index and reference it, and prepare the documents via annotation for use at trial
- Analyse all the evidence as a whole, considering the strengths and weaknesses, including the key details that highlight matters of corroboration and inconsistency
- Prepare an opening statement, a set of cross-examination questions, and a closing argument.
This is some of the most demanding and serious work done by family lawyers. Now consider that you are the victim of the alleged abuse. You have no legal experience or qualifications, and you have no support from any professional person. Those are your own family members from whom you have to get witness statements, and whom you have to call as witnesses against your former partner. The police material relates to your interviews, and your children's interviews. The questions you have to prepare are to be put to your abusive former partner*. And the task to add to all of this – one a lawyer never has to prepare for – is that you will also face cross-examination about these allegations.
To have to go through such an ordeal as a litigant in person, without any assistance from a lawyer on either side – as in this case – is unacceptable. And as it happened, in this case, it was indeed too much for the parties to cope with. The mother was unable to continue to be questioned on the allegations of a sexual nature. Considering the context, this is entirely understandable. Who could manage this alone? I certainly could not, and I have years of training and experience as a family lawyer.
Faced with the task on the other side of the equation – defending such a serious set of allegations – a similar question would inevitably also arise. How can it be right to expect someone to manage this on their own? We don't expect people to pursue or defend rape allegations in person in the criminal courts. The difference in context between a criminal and family court is negligible, when one considers both the difficulty of the task of litigating and the consequences of the outcome. Indeed, in terms of consequences, there are many who would say the loss of a relationship with their children is as bad as, or worse than, the loss of their own liberty.
In this case, the net result of the parties' inability to properly litigate the case was very significant. The judge did all that could reasonably be asked in pursuing the truth of the matters alleged, including asking questions so that direct questioning by an alleged abuser was rightly avoided, but there was only so much the judge could do without undermining the integrity and neutrality of the court's position. Thus arrived the conclusion, in relation to the sexual assault matters, that 'The lack of opportunity for them to be tested on oath, especially given the gravity [of them] … means that only the clearest corroboration from independent sources should tempt the court into accepting them…' Findings on those most serious allegations were not made.
DJ Read then offers an illuminating series of observations about the fairness and adequacy of the trial procedure that was possible in the circumstances:
- 'I am in little doubt that had one or both of these parents been represented, the fact finding process and probably the outcome would have been very different.'
- 'The lack of legal representation gravely affected the fairness and efficiency of the process of questioning both parents.'
- 'Having professional representation and advice … is the mark of a civilised society and a mature and balanced legal system.'
- 'I was also perturbed by the mother's inability to produce a list of questions for me to ask the father … I make no criticism of her in that: the justice system should never have left her in that position.'
- 'In this case, pre-trial negotiation between advocates might have obviated the need for a fact finding evidential hearing entirely.'
- 'There is always the fear in the mind of the Court that the questioning of an alleged victim about their abuse merely prolongs that abuse by other means. Given my findings in this case, limited though they are to only the first few allegations, I think that fear is borne out here.'
- 'I cannot pretend that I was either thorough enough, probing enough, or pursued the right lines of enquiry in asking questions of either parent's evidence, but especially the father's.'
- 'There is a very strong likelihood that the outcome of the fact finding would have been different, and most probably a truer reflection of what really happened, had the parents been represented.'
- 'Overall, while this is not the first such hearing that I have conducted, it was manifestly the most unsatisfactory in terms of procedural history, preparation, process and outcome.'
What is the point of a family justice system if it is not to enable properly-made decisions about the welfare of children, and to help families make sure their children's futures are safe and secure? Our system is degraded to the point where this is no longer possible in cases such as this. The cuts to legal aid funding for representation can be likened to removing NHS care for certain types of illnesses or injury, or to not providing school teachers for some subjects. There is no good argument, either, that the restrictions to what is available under legal aid are to only the most necessary cases – what can be more important than the welfare and wellbeing of our children? If we aren't spending money on protecting children, we are not the civilised society we may like to think we are.
Many at the coalface of criminal law have been experiencing these sorts of injustices for a long time now, and they are starting to gain some attention. The Criminal Bar Association are recommending industrial action, and they are rightly supported in their defence of our justice system by the Family Law Bar Association and by many Resolution members. Sadly 'the law is broken' is a refrain that can be applied not only to the criminal justice system, but to family law as well.
*Some allegations of abuse were found to be proved in this case.
Matthew Richardson is a family law barrister at Coram Chambers, London. You can connect with him on LinkedIn and follow him on Twitter.
4/5/18