Litigants in persons (those who represent themselves) are becoming increasingly common within the family law court system. Recent research shows that figures are expected to be within tens of thousands of people each year as a result of legal aid cuts in England and Wales.
This increase is due to the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which to most, does not qualify them for a publicly funded lawyer as the Act aims to make parents ineligible for legal aid in order to encourage mediation or other court alternatives.
Further research undertaken by BuzzFeed News from the family solicitors’ association Resolution showed that many family lawyers are turning away clients because they cannot afford to pay and do not qualify for legal aid. Before the increase fourfold in 2014 lawyers turned away on average 25-45 people each year, but by 2018 this had reached an average of 100-200 people. A staggering 82% of cases turned away were for child arrangement orders.
Additional statistics show that cases, where both parties have a lawyer, are becoming an exception. The latest government figures analysed by BuzzFeed News show that while 46% of private family law cases had a lawyer on each side in April to June 2012, by the same period in 2018, just 19% did.
Moreover, more than 68,000 private family law cases involving parents disagreeing over contact with their children, at least one party had no lawyer. Of those, 30,000 had no lawyer on either side.
As previously mentioned, the government ‘s intention of cutting back on family legal aid was to encourage people to seek mediation instead of going to court. However, figures show that the opposite has occurred with only 13,000 cases now being referred compared to 31,000 in 2013.
While parents are required to attend a brief meeting explaining mediation options without lawyers recommending mediators, parents are reluctant to use them, therefore opting against it and going straight to court. As a result of the high numbers, courts have become flooded with cases that could have been resolved in mediation.
Additionally, family lawyers are no longer offering initial free legal consultations that were commonly offered before legal aid cuts. Lawyers would use that opportunity to recommend to parents a more friendly approach than court.
Without the help of family lawyers’ litigants in persons are expected to know what orders they need to make and must prepare their own submissions.
An indication of the lack of understanding by litigants in persons can be shown in applications for child arrangement orders for contact. This comes from statistics from the government showing that while the number of applications rose by 15% from 2011 to 2017, when 44,263 applications were registered with courts, the number of children subject to contact orders decreased by 27% in the same period.
With all this information we cannot help but wonder, are parents getting the right to a fair trial without legal representation and, is there a breach under the Human Rights Act 1998, Article 8, the right to family life?
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