Article today 7.06.11 in Guardian on the chaos that will be caused by legal aid cuts
"Legal-aid cuts of £350m will bring chaos to courts, judges fearLitigants, some with mental health problems, will be forced to represent themselves in emotional divorce and childcare cases
Amelia Hill guardian.co.uk, Monday 6 June 2011 17.53 BST
Judges are worried that cuts to legal aid will bring chaos as vulnerable people present their own cases in emotional divorces. Photograph: Peter Macdiarmid/Getty Images The number of people who represent themselves in the civil courts – because they cannot afford a lawyer and fall outside the limits that are set for legal-aid funding – is about to rise because of government funding cuts, leaving courts braced for a growing number of vulnerable people fighting their own, often chaotic, cases.
Litigants-in-person, as they are known, are among the most vulnerable of those seeking legal justice. The daunting experience of going to court on their own and the devastating, highly emotional, personal issues around which their cases often revolve have led one expert to describe them as "unexploded bombs".
But their numbers are expected to grow. Government plans to reduce the legal aid budget by £350m, in a bill to be published this month, will see professional support withdrawn completely in cases of clinical negligence, education, debt and family disputes, except those where domestic violence is involved. For most of those areas not axed, clients will be left with no help other than telephone advice lines.
According to the Ministry of Justice, half a million people a year will lose the right to legal aid funding. However, the Legal Action Group, a campaigning organisation, says that as many as 650,000 people could find themselves with no one to turn to.
It is, the government has indicated, the family courts that will be hit hardest by the cuts. Tackling some of the toughest cases, from childcare to divorce, the family courts will see 250,000 cases a year taken out of public funding.
The Guardian was given unique access to the principal registry of the family division to watch litigants-in-person fight their cases and to talk to lawyers and judges about what will happen if, as anticipated, numbers increase. One judge told the Guardian the changes "will inevitably increase the risk of justice not being done".
At the Royal Courts of Justice in London, a stream of confused and frightened people try to navigate complex legal waters. Some have a poor command of English, or hearing or mental health problems. Many seem to have a strong case - but without the guiding hand of a lawyer, they muddle their arguments, damage their causes and risk seeing their hopes of justice slip away. Recent research shows that up to twice as many people lose their cases when they do not have access to legal representation. Of 25,500 incapacity benefit cases in 2009-10, only 33% of people who were represented lost, compared with 60% of those without lawyers.
The first litigant-in-person case in the court of district judge Lynn Roberts is that of Sarah, a mother of three who is so scared of her former husband that she has been granted a rare order excusing her attendance in court. But Sarah cannot afford a lawyer. This means she has no legal right to ask anyone to monitor the progress of Tony, her ex, as he fights for renewed contact with their young children.
Sitting at home, anxious and scared, the only way she can discover quickly whether Tony has been successful is to ask her father to breach regulations and sit in court as an observer. It is a request that Roberts finds difficult.
"You're not allowed to be here," she tells him. "This puts me in a uncomfortable position. I shouldn't allow it."
This turns out to be the least of Roberts' concerns. Tony, it quickly becomes clear, has mental health problems. He is also unrepresented and becomes volatile and unpredictable. He weaves a chaotic course through his case, making increasingly unreal claims and long, rambling pronouncements.
"I'm trying to help you," sighs Roberts at one point. "But your behaviour is really foolish."
Tony has spent the last week showering Roberts with emails detailing his wife's past correspondence with another man.
"That was a totally unsuitable thing to do and suggests to me that you're not making any advancement in your emotions," says Roberts, trying yet again to convince the young man to attend a specialist course – paid for by the court – to tackle his behaviour towards his family.
"You haven't seen your children since 2009," she reminds him. "Unless you are assessed, I can't allow the reintroduction of contact between you and your children."
Next up is 28-year-old Clement, whose wife had attempted to divorce him illegally. She has not turned up and he is unrepresented. Unlike Tony, Clement is organised and calm. But he is also ignorant of legal minutiae.
"I have everything here to prove the signatures on the decree nisi and decree absolute aren't mine," he says, thrusting handfuls of paper at Roberts. "And here are some pictures of my wedding."
Roberts waves the photos away. "I'm not disputing you were married," she says kindly. "But there are still some pieces of evidence missing."
Later Roberts admitted: "He's probably one of the most well-organised litigants-in-person I've seen, but even in such an apparently straightforward case, it can be a mistake to assume a foregone legal conclusion. He could still come unstuck.
"One of the problems with litigants-in-person is that they don't bring documents or call witnesses, so I can't assume what they tell me is true. And because I can only judge on evidence I have seen, I sometimes have to make a final decision that might well have been different if they had called a certain witness or brought in a vital document.
"Is that justice? No, of course it's not. An increase in litigants-in-person will inevitably increase the risk of justice not being done."
Her view is backed by Judith March, director of the Personal Support Unit, the only charity in the country offering non-legal advice and support to those going through civil court proceedings without representation.
"These are people whose lives are usually in complete chaos," she says. "Generally they are unable to present their case in anything like an effective way. They often have mental health problems, chaotic lifestyles, anger issues, very poor education, a lack of eloquence and confidence, and an absence of any real understanding of how to ask for what they want or explain why they should get it.
"If you add those factors to the reasons they're in court – fighting to see their children or avoid losing their homes – then it's not surprising they are commonly highly emotional to the point of being irrational. They are completely unpredictable. They are unexploded bombs."
If handling one litigant-in-person is difficult, managing two is almost impossible. Adrienne Barnett, a solicitor specialising in child law, remembers a recent case. "The parties, both unrepresented, were wrangling over one asset: the former family home," she says. "It was a simple case that would have taken one 15-minute appointment if they were being given the right legal advice and support. As it was, it went on for two and a half years – the cost to the courts would have been enormous."
Roberts also has horror stories. "I had a case recently where an unrepresented woman had to question her former husband over a range of assaults he had committed, including rape. I helped her with the questions she needed to ask, but it was just awful," she says.
"I had another case where a very upset wife was having to cross-question her equally upset former husband about circumstances that had culminated in him going off with her best friend. Both were unrepresented. It was chaotic and deeply upsetting."
It is not just in court that those without legal help can get into trouble, Roberts adds. "Last week, I ordered a father seeking access to his children to attend a consultant psychiatrist specialising in alcoholism. This man was fortunate, he was represented. But where would a litigant-in-person begin to look for a specialist like that?
"How would they arrange for their medical records to be sent to them or for the consultant to obtain a copy of the court judgment? And how would they pay for it all? But without this evidence, judges can't make decisions. The system will just grind to a halt."
The government has defended its proposals, saying the cuts are necessary to reduce the number of lengthy, acrimonious and sometimes unnecessary court proceedings that take place at the taxpayers' expense.
The justice minister, Jonathan Djanogly, has said the review will "radically reform the system and encourage people to take advantage of the most appropriate sources of help, advice or routes to resolution – which will not always involve the expense of lawyers or courts".
The Law Society, the largest professional body of UK lawyers, has drawn up an alternative programme of cuts that it says would save £384m in the next 12 months. The society's proposal would also reduce unnecessary hearings and introduce other efficiencies, but has, said its chief executive, Des Hudson, been ignored.
Francis Wilkinson, a family lawyer at Fieldcourt Chambers in London, accuses the government of making "cynical" calculations over where the cuts will fall.
"It is hard to see the justification of the withdrawal of legal aid from financial cases," he says. "These cases don't cost the Legal Services Commission a penny because they get all their money back through cost orders."
Financial cases are so complex that litigants-in-person will find it almost impossible to fight them on their own, Wilkinson said. He related a recent case in which a businessman claimed he had just £500 in assets, forcing his former wife and three young children to move into a refuge and live on benefits.
"I had to get 14 international orders forcing financial disclosures in jurisdictions across the world and freezing his accounts," Wilkinson says. "It took months of serious detective work but I eventually found he had assets of £1.3m, half of which we secured for his ex-wife.
"How far would she have got on her own? Not very far at all. She was intelligent and educated but she would not have known what to do – and you can't expect a district judge to take the initiative to track down all that money and make all those orders.
"I've got no doubt that somewhere, someone has done the sums on the savings this review will achieve, but I suspect them of having made some pretty cynical calculations based around the fact that if you make it too difficult for people to seek justice through the courts, they will give up," he said.
"That means fathers losing contact with their children and mothers learning to rely on benefits instead of getting their rightful settlements from ex-partners."
Other lawyers warn that while the cuts ostensibly affect only those going through the civil courts, the impact will ripple out into the criminal justice system.
In addition, they say, allowing funding for family cases only where domestic violence is involved will act as "a perverse incentive" for false claims.
"If you don't give the most vulnerable people the opportunity to redress their grievances through the civil courts, they are likely to turn to criminal solutions," says Lucy Webley, a family law expert at Hallmark Hulme solicitors. "The knock-on effects of these cuts will have significant ramifications for wider society. Justice is at risk of not being done and we will all suffer for that."