A High Court judge warns that denial of legal aid in Court of Protection cases is a false economy

Published: 14th October 2014

High Court judge Mr Justice Baker has referred to the denial of legal in Court of Protection cases or in the Family Court as a 'false economy', as cases involving litigants in person tend to take considerably longer than usual cases where all parties have legal representation.

The case he was referring to was one of a 24 year-old man, who suffered with autism and learning disabilities, and his parents who represented themselves in court against their Local Authority over care and residency issues.

The case took much longer than expected, with the hearing being originally listed for 10 days, but actually taking more than twice as long to conclude. The court acted leniently towards certain rules to try and aid the parents in representing themselves, but they still struggled against what they described as "limitless public funding and resources" at the disposal of the Local Authority.

"With hindsight, the time estimate was plainly too short, but the case was undoubtedly extended by the fact that [the parents] were representing themselves", said Mr Justice Baker.

He continued, "Overall, I cannot recall a case in which litigants in person have been assisted by the court and the other lawyers to the extent provided in this case. I am satisfied that as a result [the parents and their son], have received a fair hearing, but this was only achieved at the cost of a significant lengthening of the proceedings.

"One lesson of this case is that, if parties such as [the parents] are to be unrepresented in hearings of this kind, be it in the Court of Protection or in the Family Court, the hearings will often take very considerably longer than if they were represented. Denying legal aid in such cases is, thus, a false economy."

This is not the first time we have reported on the impact the removal of legal aid is having on the family courts. Last month we reported that the Ministry of Justice had revealed official figures showing that over 50% of all parties involved in the family courts are now representing themselves, without representation of a solicitor.

The rise in the number of people representing themselves in court is creating a backlog of cases, with the average divorce now taking 32 weeks to finalise (involving self representation), compared to 24 weeks with legal representation.

One of the biggest problems with people representing themselves in court is that they don't have the knowledge of legal jargon and the technicalities of the family law system, they also don't have the experience in handling the necessary paperwork or case evidence required, which means cases take a lot longer and costing the government considerably more in staffing costs.

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