‘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.

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

1. support for litigants in person;
2. support for parents and families outside and during litigation;
3. disseminating information about the above; and
4. supporting and reinforcing the roles of family lawyers.

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

Following the announcement in April 2013 of the implementation of the modernisation programme, people in this area have worked very 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 said then, as I do now, that we can only achieve what we need to achieve if we observe four alliterative concepts – good communication, effective collaboration (ie team work), a change in culture and, finally, a commitment to the people who really matter – the public who are forced into our systems for a resolution of family and personal issues where consensus (assisted or otherwise) fails. Thankfully, and as a result of a collaborative exercise, we have now reduced our delays considerably so that the average public law case takes about 25 weeks here.

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

The number of private law applications that are now being made is down by something like 36% since the legal aid changes in April 2013; it may 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 article published on 24 September 2014 which suggests that ‘nearly three-quarters of private family cases involve one or both parties without legal representation’. The figure of 70% emanates from the Office of the Children’s Commissioner which has 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: ‘I have asked the Ministry of Justice to review the findings in this report. We have had to make difficult decisions to protect legal aid for the long term but this shouldn’t be at the expense of the rights of children’. In the Bristol area the figures are these:

1. Private law receipts per child for Bristol DFJ area July 2014 – 209. Private law receipts per child for Bristol DFJ area July 2013 – 285 [ie a reduction of 74];
2. Private law receipts per child for Bristol DFJ area April 2014 – 225. Private law receipts per child for Bristol DFJ area April 2013 – 320 [ie a reduction of 95].

Combine the 2 months and the total reduction over 2 months is 164 less applicants. It may also be worth citing the figures that come from the 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 divorce cases involve at least one person without an attorney at the beginning of a case – 80% by the end of a case;
2. 90% of domestic violence cases involve no attorneys;
3. 90% of tenants in eviction cases do not have attorneys – nor 30% of landlords.

It is right to observe that, recently, there appears to be an increase in the take up of mediation. The Chief Executive 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 in applications during the period of which we are speaking.
 

Taking steps
 

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

1. a mother with an IQ of 85; 
2. a father whose first language is not English; 
3. a subordinated wife leaving a non violent but dominated relationship; and 
4. a distressed grandparent who wishes to intervene in care proceedings.

The purpose of this article is not to make any sort of political statement. We are simply not qualified to make any remarks about whether the legal aid budget should be increased or decreased. The legal aid budget in this country is huge (apparently somewhere between £1.5 and £2 billion). The purpose of this article is not to discuss how that money, or any variations in it, should be spent. Instead our aim is two-fold. First, to ensure that there is an optimal, accessible and sustainable system of family justice in our area and, 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 what they must do (except in the limited confines of court work and subject always to the direction of higher courts, more senior judges, statutes and any appeal). But it does create a leadership role with a responsibility to maintain and improve the family justice system in this area through discussion and example.

The four points that we mention at the outset of this article have taken us to more meetings over a short period than any of us can ever remember 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.
 
Rota of duty family lawyers – Bristol Resolution helpfully invited discussion as to whether a duty scheme of family lawyers at court might be feasible and as to the shape that any such scheme might take. Those discussions have begun and we are in the midst of investigating whether it is possible to have a rota of family lawyers who attend court (eg once or twice a week) to give outline legal assistance to LiPs at court, where they can also signpost people to other organisations that may also be able to assist. Some members of Bristol Resolution, individual barristers at St Johns Chambers in Bristol and Claire Wills Goldingham QC have given support to investigating whether this can be achieved. There are difficulties such as avoidance of professional conflict / compromise, complaints, diary management and insurance. Some professionals in the area are very opposed to such a scheme, feeling that it would support legal aid cuts. However, we hope that these difficulties and objections can be surmounted and that the scheme will operate soon. If they cannot be overcome, then there are obvious alternatives that can be put in place in any event – such as holding family law ‘classes’ at court and over the website mentioned below (as they do in California, see above) where groups of LiPs are advised about law and procedures.

Support for Parents and Families – There is a huge pool of voluntary and extremely valuable organisations which offer support to families and parents. The idea is to co-ordinate that support and inform the public in this area of its availability. Its importance does not just lie within the court process. It may well be that, with proper support (both within what we would call private law but also public law) families and parents can find a way of avoiding litigation or the need to mediate. If litigation does follow, parenting and family support can make a very big difference. Time and time again we see young mothers facing, or being involved in, care proceedings with only limited personal help with the basics of parenting and coping with litigation. Seemingly simple issues such as housing, budgeting, finding therapy, coping with children, etc may all benefit considerably from personal support from the voluntary sector. We have already seen the benefits of these links (and an increased knowledge of what is available) particularly in public law cases.

On 23 September 2014 we will hear from many organisations that most of us had simply not thought about before. Some groups came from the church (for instance a system of ‘parenting buddies’ that operates here through one church and the National Parenting Initiative, which is supported locally by Jane Auld). Other groups came from other organisations. The Windmill Hill City Farm, for instance, offers opportunities for parents to work with children on the farm or in a cycle repair workshop. ‘Family Lives’, Home Start and ‘CAN Parent’ offer support, access to parenting courses and befriending. A number of organisations offer support for children. They are too numerous to mention and meetings with newly discovered groups continue in rapid succession. Cafcass is also investigating whether it can be involved in an early intervention scheme which will help divert families from litigation. We will know shortly whether this very valuable input from Cafcass will be available. 

Our intention now is to continue to draw together the main strands of support that exist to help parents and families. It is very rewarding indeed to work with these groups and also to be able to say to a mother who faces multiple assessments in a public law case, ‘please think about support from voluntary agencies and here is a list of those who can help you’.
 

Publicity and information
 

None of the above is any good if the public within the local community do not know what we are doing. We are therefore taking the following steps:

1. We have the offer of help with setting up our own website. One has been designed for us. We need to organise funding for it and a team to maintain it. All that is well underway. The idea is not to create a website for lawyers or about the law. It is a local community website to advise people what is available and also how to deal with litigation. We are confident that the website will be up and running soon. 
2. Ben Jenkins (from Albion Chambers) has offered to join with us in speaking to organisations (including the public) in arranged conferences about the law and procedure of the family court. Our idea is to roll our sleeves up and get stuck in with telling people about what we do. There has been a lot of interest in this. 
3. Creating a one page flyer to be posted in libraries and other public locations (including the CAB front window) about the facilities that exist and which are described in this article. Sarah Phillimore of St Johns Chambers has kindly agreed to lead this initiative. 
4. Holding regular conferences in which the work of the family court becomes more visible. There is now a very active medico-legal society. We have organised four conferences so far (the last one was on ‘Sudden and Unexpected Death in Infants’ in October). 
5. Liaising with schools. Jo Lucas (of Albion Chambers) and Abigail Bond (of St Johns Chambers) are linking with schools to organise conferences, meetings, marshalling, etc so that young people and teachers know of our work. 
6. Liaising with the very active and supportive University of the West of England, Bristol. Emma Whewell from that university gives us the most tremendous help, inspiration and encouragement. 

Supporting the roles of family lawyers
 

Many family lawyers feel very vulnerable at present for obvious reasons. In addition to organising and speaking at conferences with lawyers (because visibility of the legal profession and the work it does is so important) there has been consideration of single issue representation (by which, as in California (see above), lawyers act on single issues within proceedings rather than by way of a general retainer). We have suggested that participation in a family lawyer rota can only help the professions (in the way that the free half hour offered by many solicitors provides a route into their work); but if that cannot be achieved then the holding of family law ‘classes’ can only assist in the drive for increased visibility.
 

Conclusion

We do not pretend that the system of voluntary services we have created is a substitute for legal advice and representation by qualified lawyers. It cannot be. What we hope to achieve is to reinforce the accessibility of our system of justice. Thus, those who would otherwise not have sufficient confidence to access court services will hopefully gain some support in resolving family issues which are very often a source of real crisis and harm.

_{Source: http://www.familylaw.co.uk/news_and_comment/the-way-we-are-accessing-the-court-after-laspo#.VETWZsXt98E}