‘The way we are’: accessing the court after LASPO

HHJ Stephen Wildblood QC, Designated Family Judge for Avon, North Somerset and Gloucestershire
Claire Wills Goldingham QC, Albion Chambers, Bristol
Judi Evans, St Johns Chambers, Bristol

The below article has been taken from the November 2014 issue of Family Law and made available ahead of print.

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We are writing this article to explain a process involving fourpoints that we have put into effect in the ‘DFJ area’ of Avon, North Somerset and Gloucestershire. Those four pointsare:

1. support forlitigants in person;
2. support for parentsand families outside and during litigation;
3. disseminatinginformation about the above; and
4. supporting andreinforcing the roles of family lawyers.

In developing that process, the three authors of this articlehave worked with many people. We are deeply indebted and, at times, have beentruly humbled by what we have discovered to be available to those in need ofhelp and support.

Following the announcement in April 2013 of theimplementation of the modernisation programme, people in this area have workedvery hard to achieve improvements in our public law work. I, Stephen Wildblood,became the Designated Family Judge in this area in that same month. I saidthen, as I do now, that we can only achieve what we need to achieve if weobserve four alliterative concepts – good communication, effectivecollaboration (ie team work), a change in culture and, finally, a commitment tothe people who really matter – the public who are forced into our systems for aresolution of family and personal issues where consensus (assisted orotherwise) fails. Thankfully, and as a result of a collaborative exercise, wehave now reduced our delays considerably so that the average public law casetakes about 25 weeks here.

That feels very much like ‘phase one’. While all that has beengoing on some very strong statistical information has been produced about whatis happening in private law proceedings. Private law proceedings cannot beviewed as the ‘poor relation’ of the system. Children caught in the midst ofparental conflict in private law proceedings can be every bit as vulnerable asthose involved in public law proceedings. We are very conscious that we meetand assist people at times of great stress and distress in their lives andwhere, in some cases, the court is being asked to make the most life-changingorder possible – that of adoption.

The number of private law applications that are now being made isdown by something like 36% since the legal aid changes in April 2013; itmay be informative to bear in mind that, in the Employment tribunals,applications are said to be down by about 80%, with obvious knock-on effects.Most litigants in private law proceedings appear without legal representation(57% in December 2013 and now said to be around the 70% mark). The Law Society Gazette contains an articlepublished on 24 September 2014 which suggests that ‘nearly three-quarters ofprivate family cases involve one or both parties without legal representation’.The figure of 70% emanates from the Office of the Children’s Commissioner whichhas recently published a report Legal Aid Changes Since April 2013: Child Rights Impact Assessment.As a result, the Minister for Justice, Simon Hughes, is reported as saying: ‘Ihave asked the Ministry of Justice to review the findings in this report. Wehave had to make difficult decisions to protect legal aid for the long term butthis shouldn’t be at the expense of the rights of children’. In the Bristolarea the figures are these:

1. Private lawreceipts per child for Bristol DFJ area July 2014 – 209. Private lawreceipts per child for Bristol DFJ area July 2013 – 285 [ie a reduction of74];
2. Private lawreceipts per child for Bristol DFJ area April 2014 – 225. Private lawreceipts per child for Bristol DFJ area April 2013 – 320 [ie a reductionof 95].

Combine the 2 months and the total reduction over 2 monthsis 164 less applicants. It may also be worth citing the figures that come fromthe Administrative Office of the Courts of California (see E Walsh,‘Self-help for LiPs’ in September [2014] Fam Law 1345) which are said to be:

1. 70% of divorcecases involve at least one person without an attorney at the beginning of acase – 80% by the end of a case;
2. 90% of domesticviolence cases involve no attorneys;
3. 90% of tenants ineviction cases do not have attorneys – nor 30% of landlords.

It is right to observe that, recently, there appears to be an increasein the take up of mediation. The ChiefExecutive of National Family Mediation, Jane Robey, has spoken of a 30%–40% increase in some areas. But that cannot, of itself, account for the downturn inapplications during the period of which we are speaking.

Taking steps

We have been determined to do as much as we can to help thoseinvolved in family disputes and, in particular, those involved in familylitigation (some of whom may receive about 140 pages of documentation whenconsidering a private law application). We think that the time to take these steps is now (the changes havingcome into force 18 months ago) whatever may happen in the future aboutlegal aid. We give the following examples of the sort of the people that wehave particularly in mind:

1. a mother with an IQof 85; 
2. a father whosefirst language is not English; 
3. a subordinated wifeleaving a non violent but dominated relationship; and 
4. a distressedgrandparent who wishes to intervene in care proceedings.

The purpose of this article is not to make any sort of politicalstatement. We are simply not qualified to make any remarks about whether thelegal aid budget should be increased or decreased. The legal aid budget in thiscountry is huge (apparently somewhere between £1.5 and £2 billion). Thepurpose of this article is not to discuss how that money, or any variations init, should be spent. Instead our aim is two-fold. First, to ensure that thereis an optimal, accessible and sustainable system of family justice in our areaand, secondly, to achieve, if we can, the respect of those with whom we work.The role of Designated Family Judge (DFJ) does not involve telling anyone whatthey must do (except in the limited confines of court work and subject always to the direction of higher courts, moresenior judges, statutes and any appeal). But it does create a leadership rolewith a responsibility to maintain and improve the family justice system in thisarea through discussion and example.

The four points that we mention at the outset of this articlehave taken us to more meetings over a short period than any of us can everremember encountering before. We have met some of the most outstanding,rewarding and considerate people.

Support for litigants in person

The work of six voluntary agencies has been co-ordinated. We will describe them now in turn. They will each give a short presentation at a conference that we organised on 23 September 2014.