Unless you have been on a
different planet for the past few weeks and months, you cannot fail to have
heard about the significant changes being proposed to the legal aid system in
England. In short, it is quite possible that if you are going to be involved in
a family law case in future then these changes will affect you in some way and
you will need to be aware of them. Many people that traditionally would have
been entitled to financial support in their legal proceedings will find
themselves no longer covered by the safety umbrella of legal aid, and will
either have to find an alternative way of paying for their legal advice, or will
simply have to represent themselves in court. The latter may lead to a substantial
slowing down in the legal process, particularly at court, with many cases being
held up due to litigants in person (that is what you will be if you represent
yourself in court) attending court ill-prepared, not being able to grasp the
legally relevant points of their case, and not understanding the processes
demanded of them by the antiquated ideals of the English legal system. It could
be a recipe for disaster, if some respected legal reporters are to be believed.
There can be no question that
the legal aid bill does need to be addressed. The legal aid bill currently
stands at £2.2bn, and the government’s aim is to reduce this by £350m. It is
not feasible to suggest that the current level of funding can be sustained over
any great length of time, so something does need to be done to tackle, what has
become, an out of control animal. But, to take the funding away from the people
that most need it, and those that are most likely to be clogging up court time,
does seem a little like cutting off your nose to spite your face. Can reducing the
legal aid bill in family law be of any benefit when weighed against the
additional time, and inevitable costs, that the courts will face in having to
process litigants in person, many of whom will have no legal knowledge, will
not understand the legal system, and cannot be expected to know what is, and
what is not, a legally relevant argument to put in front of the court.
The Citizens Advice Bureau
suggests that as many as 210,000 families could be affected by this change in
legal aid, reducing the number of families entitled to it from 250,000 to
40,000 per year. That is quite a significant drop if these figures are to be accurately
reflected when, and if, these changes come into effect.
Usually, alongside any talk of
reductions in legal aid, is the cry from the government and others that this
will lead to more people attempting mediation, and will keep parties outside of
the court. But, does mediation work? Well, as with most things in family law,
yes and no. It really depends on who you talk to.
Mediation can be an effective
way of resolving issues between parties, but, it generally only works if both
parties enter it without too many pre-conceived ideas and demands about what
they want out of it. It may not work when one party is controlling or manipulating
and will only ever agree to things on their terms. Mediation is a two-way
process, and there does need to be some give and take from both parties. Any
agreement made by mediation is not binding on either party; until such time
that a legal agreement, consent or other court order is made. Mediators should
be balanced and fair, only there to help move things forward and to mediate a solution,
and they must not force an agreement on either party. But, mediators are human,
and we have seen cases where a strong and manipulating party has sought to
control the mediation session and get the mediator on their side. It shouldn’t
happen, but we are all human, and in reality these things do happen.
Some of the difficulties, and hence,
spiralling costs, in family law cases are caused, not directly by the parties
themselves, but indirectly by friends and family of the parties offering advice,
stating how strong their case is, and how easy it will be for them to win. They
may take their ‘advice’ from the internet, from tabloid newspaper reports, or
‘through the grapevine’, and they pass their new found wisdom on to a party in
the case. This advice is nearly always provided with good intentions, and they
may, of course, feel that they are just doing their bit to assist.
Unfortunately, the internet is not always accurate, and it is nearly always
possible to find a contradicting story to the one that has been read. In family
law cases, the matters are private, and therefore, reporters do not get to
report on the vast majority of cases. Only where a case is particularly
ground-breaking does it reach the newspapers, and even then, the reports are
often restricted on content due to the cases involving very private matters.
These reports are not reflective of the vast majority of family law cases.
Parties should, perhaps, take a realistic approach to the legal process, rather
than the idealistic approach that may be gained from these sources.
A complete ‘win’ in family law
cases is rarer than you might think, and often, both parties will have to give
and take a little to reach a workable solution. It is preferable, perhaps, not
to see it as one party winning and one party losing. There are, of course, very
strong emotions in many family law cases, and at court, without someone to keep
these people on track, to keep the arguments relevant and factual, and to know
what, and most importantly, what not, to argue over, there is the potential for
the proceedings to descend into chaos. For example, in disputes over contact
with your son/daughter, a judge’s primary consideration is for the welfare and
safety of that child, and he/she will only make an order if it is better to do
so than not to do so. Judges like to see matters move forward, and although
they like things to progress, it does not mean that the case will be resolved
at the first hearing. Small steps are always the order of the day when it comes
to children, unless there are serious welfare or safety concerns. It is
surprising how many people come to court looking to dwell on the past and to try
to score points off of the other party. It rarely works, and sometimes, you
could be forgiven for thinking that the case was about both parties rather than
the child, who, as we have already said, is the court’s primary consideration.
If you can avoid the irrelevant arguments, concentrate on the facts, and see
your case weaknesses as well as its strengths, you are more likely to survive
the experience intact and live to fight another day. And, of course, I do not
want to criticise lawyers, but these, what I call, ‘he said, she said
arguments’, that clutter court hearings and pre-trial communications, are where
the majority of your hard-earned income, not to mention the emotional energy,
is being directed and expended. Is it really that important that your son or
daughter has arrived back from contact with a pair of socks missing? Don’t
laugh, it happens! Going to court is rarely a pleasant experience and should be
avoided at all costs. It is certainly not the only way, or very often the best
way to resolve matters. But, if you are caught up in the experience, make sure
you use your lawyer effectively; you could save yourself a great deal of money
and emotional energy. And to those that say, ‘well, it’s not my money, it’s the
legal aid who are paying’, then perhaps it is this type of attitude that needs
to be addressed, and the money saved redirected to the people that are fighting
the real issues in their legal proceedings.
Of course, if you cannot afford
a solicitor, cannot get legal aid, or you are just disillusioned with lawyers
generally, then you have a different problem; where to go for advice.
In recent times, some roles of
the traditional high street lawyer have been supplemented with supermarkets and
book stores (Co-op and WHSmith to name just a couple) setting up ‘legal points’
in their stores. The potential for this to grow over the next couple of years to
cover wider areas of law is clear for all to see. This may make legal advice
more accessible and affordable to some people, but do be aware of cheap advice,
as it is not necessarily good advice, and may cause as many problems as it aims
to resolve.
There is also the Citizens
Advice Bureau and other charitable and non-charitable help groups who can
provide invaluable advice for anyone seeking to take or having to face legal
proceedings, although many of these groups have seen their funding capped or removed
altogether in recent times.
If none of these options are
useful to you then you may wish to consider using the services of a McKenzie
Friend. We run a McKenzie Friend service for our clients. We can offer
competitive hourly or fixed fees, and we can help you to achieve at least the
same results as you are likely to get with a lawyer. However, we do have our
limitations, and you need to be fully aware of these before using us:
A
McKenzie Friend is not a legally qualified person. We do not have the same
level of knowledge, experience, or rights as a member of the legal profession.
To continue using our services, you need to be aware of, and understand these
limitations.
Where
possible, we would strongly suggest the use of a solicitor, or other qualified
legal professional. Where this option is not available to you, our company may
be able to offer some assistance.
We
have to advise you that we are not lawyers, we cannot conduct your whole case
for you, and we have no right to speak for you in court (it will only ever be
granted by a judge in exceptional circumstances). You have a right to request a
McKenzie Friend to assist you at court, but a judge, or a party to the
proceedings, may refuse in some circumstances. It is therefore important to
notify the court, and all parties, of your intention to use a McKenzie Friend
at the earliest opportunity (we can help you prepare a letter if that is your
intention). You have complete control of your case at all times and
responsibility for it (although we will help you wherever possible). In court,
our primary purpose is to offer moral support, take notes, give quiet advice on
any aspect of the conduct of your case (if required), and assist with case
papers.
I
hope that I have provided a brief insight into why there is concern over the
reduction of the availability of legal aid, how parties can think clearly about
what is most important and legally relevant in their cases, and given some
alternatives that litigants in person may wish to consider should they ever be
unfortunate enough to be caught up in the legal system. Perhaps the best advice
would be to find a way to negotiate a way around the legal maze as effortlessly
as possible, and to get back out of it as quick as you possibly can.
Steve
Young, Your McKenzie Friend
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