Family Law

Access to justice has always been on the agenda.  Access to the law is different.  Don’t citizens of a country have the right to know what the law is?  If the law is complex (and it is) shouldn’t citizens have access free of charge to a clear description of the main rules and cases?

In his address to the FLBA on 26 February 2016, the President of the Family Division said, ‘we are now moving towards a new phase of reform; reform so fundamental that in retrospect the great reforms implemented in April 2014 will seem modest in comparison’.

Part of the reforms relate to transparency.  His Lordship notes, ‘we must constantly strive to improve, to streamline and to simplify the system’.

Some of the new reforms are ambitious.  In respect of ‘digitisation’, the President expressed the hope that the process will be supported by ‘equipment much better than the elderly and inadequate kit to which we are at present condemned’.  Further: ‘The visible consequences of this will be court buildings rather different in design and function to what we are accustomed to.’ Time will tell whether the funding is available to meet these worthwhile aspirations.

His Lordship referred to ‘the digital court of the future with its large population of unrepresented litigants’.  In this regard he states: ‘We need an entirely new set of rules ... The Family Procedure Rules are a masterpiece of traditional, if absurdly over-elaborate, drafting.  But they are unreadable by litigants in person and, truth be told, largely unread by lawyers.  They are simply not fit for purpose ... Rules to the extent that we still need them, must be short and written in simple, plain English.’

There will be many who support the President’s zeal for reform.  It is right to acknowledge however, that the rules were written by lawyers for lawyers.  They are designed to be precise and to achieve another objective, certainty.  The rules of Part 25 regarding experts, for example, are complex but they were designed to end another problem: the battle of the experts which has previously caused so much delay and cost.  If there is to be a re-writing of the rules, the task will be an onerous one.

It is suggested that however skilful the drafting, what will still be needed is a network of support and information about family law and the family law process.  Much is already available.  An excellent starting point for this is the House of Commons briefing paper: ‘Legal help: where to go and how to pay’, dated May 2015.

The report details a plethora of advice available via law centres, Citizens Advice Bureaus (over 3,000 locations in the UK) and pro bono legal advice schemes.  In addition to these general legal advice resources there are an increasing number of sources of information and support for those in family law disputes.  To take just a few examples:

• The personal Support Unit now based in 13 cities in the UK;
• Law for Life (incorporating AdviceNow);
• A number of well-written publications including the excellent DIY Divorce and Separation: the Expert Guide to Representing Yourself by a group of family law barristers and published by Jordans;
• Various schemes in local court centres; to take just one, in Bristol, a number of lawyers (not the author), supported by the Designated Family Judge have put on a number of events to provide free information to litigants about how the process works.

It is right to say that opinions amongst lawyers as to such initiatives differ.  The response of some to those who support a pro bono agenda has been hostile.  The reality however, must be that access to the law and what the legal rules are is a fundamental right.  Those who are in the best position to provide such information are the lawyers.  It is understandable, in a world where legal aid cuts have hit home, that some are sceptical, but ultimately to decry these efforts is to say those who have less money should have less justice.  The reality too, is that those who can afford to pay for legal advice will continue to do so.  Ultimately lawyers who assist access to justice improve the standing of the profession.  The well-known quotation from the Bible illustrates as little else can, the reason for distrust of the profession going back centuries: ‘Woe unto ye lawyers.  For you have taken away the key of knowledge.’

It is suggested that the President’s energy and momentum should be joined.  The spread of specific legal information is of value to a democratic society.  It can reduce the uncertainty, pain and stress of those attending the courts.  It can make life more bearable for the judges.  It will save time so that all cases can be dealt with more quickly, including those where people are legally represented.