Legal Aid Cuts Punishing Disabled Families

The thought that goes into the needs of disabled litigants

Two cases reported in the past week relate to litigants-in-person lacking the ability to represent themselves in court, but under the current system, being unable to secure legal aid. 

People with specific learning difficulties have had problems in court for years, and prior to the legal aid cuts, many were failed by the system. What was an aberration, sadly, is now underpinned by feckless Government policy and a Ministry of Justice which is anything but. Such criticism also encompasses attempts by the Government to limit judicial review (can't have judges pointing out failings in Government policy), dismantling of legal aid in criminal law, and the Government's desire to abolish the Human Rights Act (human rights... where's the profit in that?).... and we could go on, and on, and on.... but back to this week's legal news.

The first case involved an illiterate mother, with poor sight and hearing, forced to represent herself in court over child arrangements. The gender isn't important, her disability is. Judge Hallam told the hearing:

“If legal aid is being refused to people such as this, I am satisfied that injustices will occur … Mothers in her situation should have proper and full access to the court with the assistance of legal advice.”

The second case reported this week is yet more concerning. Parents with special needs, and the father having an IQ of 50 and specific learning difficulties facing their children being removed from their care and placed for adoption (no doubt under the Government's equally poorly resourced "fast track" system). A care order existed, but with the children living at the parents' home under the order. Sadly, under such circumstances, when the Local Authority considers removal, non-means tested legal aid is not available, and the father is expected to pay for solicitor and counsel from his spare £73 a week. In my county, advocacy services for the disabled are being cut by 40%, along with other services. No doubt more disabled parents will struggle.

Grayling has already criticised the President of the Family Court for raising concerns that adoptions are being rushed through without alternatives being adequately explored.

Thankfully the judge at trial in this second case passed matters to the President of the Family Court for review, whose criticisms (couched in moderate language, but the equivalent of a small nuclear explosion in the Government's direction) included:

"Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable."

"...the parents were entitled to non- means, non-merits, tested legal aid when facing the proceedings under section 31, at a time when removal of their child was not the plan. Yet when they are now facing an application for the permanent removal of their child and his adoption they are denied legal aid. That, to use no stronger expression, is a decidedly curious consequence of the scheme embodied in Regulation 5 of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013. Some might suggest that it is irrational. No doubt it is some imperfection on my part, but I confess that I struggle to understand the policy or rationale underlying this part of the scheme.

Both the trial judge and President shared the conclusions that:

"A parent with learning difficulties who is not entitled to legal aid is at a very great disadvantage when seeking to stop a local authority removing his child."

"The current system in which so much of the responsibility for representing parents who lack capacity falls on the shoulders and inadequate resources of the Official Solicitor is nearing breaking point.”  

I think it fair to say that if Sir James Munby, President of the Family Division of the Court, finds the Government's policy lacking in rationality, it's fair to say it's lacking in rationality. Thankfully, Sir James understands the rules of cricket, and goes on to explain them to Mr Grayling & Co(alition):

"It is, however, the responsibility – indeed, the duty – of the judges in the Family Court and the Family Division to ensure that proceedings before them are conducted justly and in a manner compliant with the requirements of Articles 6 and 8 of the Convention. That, after all, is what Parliament determined when it enacted section 6 of the Human Rights Act 1998, declaring, subject only to section 6(2), that it is “unlawful” for a court to act in a way which is incompatible with Articles 6 and 8."

Such a duty also falls on the shoulders of Government. It's no doubt an irritation to the Government that the Human Rights Act exists (they've said they want to abolish it), but even then, the United Nations Convention on the Rights of Persons with Disabilities still places obligations on Grayling and Co(alition).  Are you listening Mr Grayling? The answer to all such problems isn't that people should work for free... unless of course you're prepared to lead by example (anyone remember Hacker's Hair Shirt?). Again, money is found for all manner of things (MPs subsidised lunches for one). What most guarantees our respect in the world, our human rights record or our ability to bomb other countries. It would appear policy favours the latter.

No doubt Grayling will once again fluster and bluster at having been called out on his poorly thought out family/legal policy. Thank God we're not currently saddled with a weak President of the Family Court.

Helping someone through court proceedings who has a learning difficulty takes time and patience. It can't be rushed. It can't be done on a budget or a shoestring. Time spent getting a stressed litigant to articulate a chronology, their wishes, their plans and proposals is hard regardless of whether the litigant has communication difficulties... but in the event of disability, becomes a much greater challenge. That, Mr Grayling, is reality.

Next time Cameron thinks of 'moral duties' (he recently announced it was his 'moral duty to cut taxes') he should point his moral compass first at the disabled and their needs. Would it help if they were natural Conservative voters or better yet, party donors?

Sir James' judgment is repeated, in full, below, and thank heavens that one small bastion of our green and pleasant land remains within the toxic soup of Coalition policy:

Litigants-In-Person: Government Proposals, Too Little, Too Late

It would be nice to write a blog piece which wasn't negative in respect of the Government and their grasp of life in the family court

Today, the Government announced a £1.4m fund to help litigants-in-person by expanding the Personal Support Unit, an advice service based at the courts, to help counter "the courts being at breaking point" (according the Resolution, and we agree). Were it not for the paltry amount, I would applaud.

According to an article in today's Guardian, as many as 650,000 people were affected by legal aid cuts, mainly in cases involving family disputes, welfare benefits, clinical negligence, employment, housing, debt, immigration and education.

By our calculation, that's £2.15 per person, which should cover the cost of the advisers' pens if not their bus fares, with a hope that law students and solicitors give up their time for free in lieu of a salary.

Simon Hughes, Justice Minister, went on “There should be no litigant in person who doesn’t have the opportunity of getting both online advice and advice in person,” Hughes said. “We are trying to grasp the nettle. It would have been needed even without legal aid changes but they have made it necessary.”

Let's remember that the Government's flagship online product 'Sorting out Separation' still gives no advice or information on the practical process for applying to the court and case management. Other mainstream sites fail to answer the most basic of questions. How do I write a statement being just one (and the litigant being referred to matters related to school).

While grateful for the work of the PSU, the volunteers that give up their time, and the service being expanded, it's not enough. The Government acts as a mechanic faced with a car that's broken down, and seems to believe that polishing the bonnet is the solution. Solutions have to be fit for purpose, and address both the problem and the scope of the problem. Otherwise, the solution fails. To date, its venturing into online solutions has produced woeful results.

Family Court process has complexity due to the sheer volume of court rules which must be satisfied [as Mostyn J reminded litigants recently in judgment] and a system designed for advisers who spent years in training. The system is complex beyond the application stage. The onus is now on the litigant to prepare court bundles, skeleton arguments, position statements, indexes, reading lists, statements of evidence, and we could go on, and on, and on. Cross-examination is a nightmare for litigants when they face their ex-partner. Dumbed down advice can be more dangerous than no advice at all.

[On this latter point of cross-examination, a simple step to help would be the judge routinely carrying out cross-examination, and widening their inquisitorial role to include the adversarial element of fact finding where parties are unrepresented. Questions might be handed to the judge by the litigant.]

While appearing as a grumpy old man, the Custody Minefield has at least done more [self funded] than the Government to provide information to litigants-in-person to help them navigate the complexity of the court.

Hughes' comments that there have 'always' been "lots" of litigants-in-person is a little wide of the mark. The number of private family cases where both parties were represented dropped by 40% between April and June this year alone. 10 years ago, the phenomenon was relatively rare in the family court. As an example, if taking a McKenzie Friend to court in those days, courts would often be quite confused, you would need to provide authorities to support the litigant in asking for lay assistance, and the 2008 President's Guidance was entirely necessary. The absence of people knowing they could self represent was, to my mind, a key reason why so many children lost contact with their non-resident parent. Even today, there remains confusion in the court which results in litigants being inaccurately advised. A clerk to my local court warned a litigant-in-person via email that they couldn't seek advice from anyone who isn't a party without the court's permission [ahem... Rule 12.75 explains the circumstances when they can!]. What advice on other sites on this issue? The screenshot above was taken today (as was the one further above). In the past, the relatively small proportion of litigants-in-person could be supported by the relatively small number of experienced McKenzie Friends.

Anthony Douglas, Chair of CAFCASS commented “They [litigants] are going through profound emotional distress, broken-hearted, betrayed and angry. Often [what’s important] is improving their relationship capability rather than having a definitive judgment.”

He is right to raise this point, as technical legal advice is only one aspect of what a solicitor or experienced McKenzie Friend would provide. We see plenty of cases where things have gone wrong by the time we're asked to get involved. Litigants making the wrong choices due to being emotional. Believing they can manage their case when they lack the skills, proud of their 80 page statement which obscures the strong points of their arguments. That they're a lousy litigant can make them appear a lousy parent. Emotion at a stressful life event, and the overwhelming experience of handling case management without, frankly, a clue as to what they're doing can lead courts to assume that how they present themselves in court is representative of their parenting in day-to-day life and lack of emotional restraint. 

Let's give an example. Joe Bloggs believes a 'social worker is a liar and biased'. He's reached this conclusion because the social worker got his or her facts wrong. An emotional reaction to someone saying something which isn't factually accurate. It happens. Social workers are overworked, overloaded, and human. Mistakes get made. A good solicitor or McKenzie Friend may suggest alternative wording that 'the social worker is mistaken', then go on to explain how. Rather than getting caught up on this emotive issue and risking alienating the social worker, better to simply address the point in a reasoned and reasonable way, and move on to advance the child focused arguments which underpin the case. In absence of this, the social worker risks becoming alienated and actually losing their impartiality, the litigant gets presented as combative and helps this view by continuing to drive home a point without thought. Legal representation places a barrier between the litigant's unrestrained emotions and their ill-considered comments and reactions. Advocacy is a skill, as is presenting an argument whether orally or in writing. While it's arguable that it might be more just for judges to see litigants as they are (tempered by understanding that the litigant is under exceptional stress), where one party is represented and the other not, there is a distinct lack of 'equality in arms' as one party's argument is tempered by objectivity while the other's is not. Should being a lousy litigant result in opinions that the party is unable to restrain themselves in childcare? It happens. 

What Douglas's universal service will be, I don't know, but it seems to have a foundation in empathy and understanding of the hurdles which a parent faces in court, which we hope carries through to his proposals. Much needs to be done. The sticking plaster announced today is simply that. A band aid on a gaping wound.