Published: 23rd December 2014
New figures released by the Ministry of Justice highlights that the number of cases in the family courts where both parties have legal representation has almost halved since the removal of legal aid from family law cases.
From July to September this year, only 24% of family law cases had both parties represented by a solicitor compared with 47% during the same period in 2012, before reforms to legal aid were introduced.
The number of self representations in court - also known as litigants in person - have been on the rise throughout 2014, since legal aid reform came in on 1st April 2013. Family law cases where both parties are unrepresented in court has risen to 28%, which has increased from 15% in the same period before legal aid cuts.
The figures also highlight that only the applicant had representation in 39% of cases (which is an increase from 32% from the same period before legal aid cuts) and cases where just the defendant had legal representation had stayed roughly the same at 9% of cases.
One interesting point from the report by the Ministry of Justice was the time it took to conclude cases with and without representation. Back in September of this year, we reported in a previous blog that courts in England and Wales were seeing that divorce cases were taking a lot longer in cases where both parties didn't have any legal representation (an increase of 8 weeks when compared to these who were represented in court.)
However, across all family law cases, the Ministry of Justice figures show that cases involving litigants in person actually took less time overall then those using legal representation. Cases where both parties had representation where finalised in an average of 27 weeks. Cases without representation took an average of 20 weeks.
The removal of legal aid in the family courts has been condemned by a number of high profile individuals involved in family law, as many think that it is unfair on those who have been priced out of legal representation and creating a two-tier system of those who can afford representation and those who cannot.
Master of the Rolls and Head of Civil Justice Lord Dyson addressed the justice committee in the House of Commons with his concerns that the rise of litigants in person was causing the miscarriage of justice. He said that he felt it would be 'extraordinary' if there weren't cases that would been won by a litigant in person had they been represented by a professional lawyer.
Lord Dyson also has his views on why cases with litigants in person take less time than those with legal representation, saying, "Quite often the hearing is indeed shorter than with lawyers. That is not because lawyers are there to indulge in spoiling tactics and get into technicalities for the sake of it, but I'm afraid litigants in person are overawed by the experience and just dry up".
"It is very difficult - what is a judge to do? Judges try to be as fair as possible and make all allowances possible but ultimately litigants in person are the only ones that can speak", he added.
The President of the Family Division, Sir James Munby has similar views, although he feels the biggest impact comes in the early stages of cases. He said, "Litigants in person are not capable of preparing a bundle of documents which comply with the rules. They used to [represent themselves] by choice - now it's not their choice. It takes time explaining the process and teasing out the issues. In the early stages of family cases, the hearings are taking longer."
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