So, imagine you’re finally divorcing the husband who has sapped your confidence and made you feel ignorant and worthless for years. Now he wants to take your daughter, aged ten, to live with him in New York. Next week at the hearing, he’ll have a solicitor and a barrister to represent him – you will have no-one.
Or, you’re in court. A pinstriped barrister sighs loudly: ‘I think what you’re referring to is on page 417 of the bundle Mrs Jones,’ she says. Getting hotter and redder, you quickly leaf through the documents. “I want to say something about the Welfare List,” you say.
‘Welfare Checklist, I think you mean,’ the Barrister says slowly and deliberately. ‘Where’s this document in the bundle?’ she asks.
‘Oh it’s not,’ you reply, ‘it’s in my handbag, though’. You pull a crumpled mass of papers from your bag. ‘I read this last night. I sort of think it’s relevant. It’s the middle bit. I’ve put a star by it, it’s says, er…’
Now imagine that you dropped out of school at 14, and you struggle to read. You’re confronted with a pile of court papers that seem to relate to your son and your ex. You’ve been told you have to write your statement of evidence for the court.
Or you’re 22-years-old, your wife has just died and you’re only able to speak a little English. Her parents think your daughter would be better off with them – they would give her everything they gave their daughter – and they’ve got the best legal minds to help them fight you all the way.
All of these people are Self-Represented Litigants – that is, people who cannot afford legal advice and representation, and have to go it alone.
Before April 2013, legal aid was available for all parents in contact and residence proceedings concerning their children. But in an effort to cut £350million from the legal aid budget, along with some other areas of law such as divorce, welfare benefits and employment, access to legal aid in this area has been generally abolished. This has meant that a more or less level playing field has become vastly unfair.
In a recent survey by the Bureau of Investigative Journalism in partnership with the Magistrates Association, 46% of parties in private family proceedings represented themselves which shows a 40% rise from December 2012 to December 2013. In the survey, 97% of the respondent magistrates said they believe people representing themselves has a negative impact on the courts work. The magistrates voiced concerns about delay, mis-balance in legal battles and the possibility of injustice.
It’s clear that we are regressing into a two-tier system. If you’ve got the cash, you’re fine; your lawyers can advise you on court procedures and your chances of success, so your expectations are managed, and you’ll know what you’re in for. Your lawyers can prepare your evidence and then negotiate on your behalf. This is particularly useful when every direct contact with your ex is a mountain that you are nowhere near yet able to climb. Your lawyers can then stand up and present your case in court too, using their years of training. They can call witnesses, analyse evidence, and cross-examine. Using the legal resources they have access to, they can cite relevant case law and legislation.
But if you can’t pay the fees, you get none of this. You will have to resort to a few books and whatever information you can find online to learn about procedures, filling in forms, submission of evidence and advocacy in court. For some, this may well be fine. But for many, it will be a long way from that. Some groups, such as those with learning and other difficulties, those with limited English, and, probably, women as a whole (who generally have less disposable income than men, especially after the breakdown of a relationship) are disproportionately affected by these cuts.
Making decisions about children is one of the court’s most crucial roles. But with all best intentions it is difficult to imagine that, where one party has legal advice and representation and the other does not, decision-making will be unaffected.
Whilst it is understandable that cuts in legal aid had to be made, it is difficult to accept that such cuts are right or fair in cases about children. Parents should not be expected to become quasi-lawyers and there should be equality of arms. The system should not be evolving to engender delay – particularly when a key principle of The Children Act 1989 provides delay is likely to be prejudicial to the child.
We cannot let this two-tier system establish itself and become the norm. We must put children at the core, and make cases involving children in our family courts absolutely fair – because, without fairness, children will ultimately be the ones who suffer.