Legal aid and ‘lawyer-free’ zones
Sir James Munby, who retired last year as President of the Family Division, is reported as saying of the family courts (Guardian 11 February 2019):
The effect of Laspo [the 2012 Legal Aid, Sentencing and Punishment of Offenders Act], with its withdrawal of legal aid from most private law disputes, has been to make the family court an increasingly lawyer-free zone, with ever increasing numbers of litigants having to appear unrepresented and without legal advice.
Owen Bowcott in the Guardian continued:
‘The “comparative rarity of published judgments in private law cases” had added to the difficulties, Munby argued. “The restrictive provisions of the now elderly and hopelessly obsolescent section 12 of the Administration of Justice Act 1960 mean that, absent a published judgment, there is very little that a journalist who has exercised the statutory right to attend a family court hearing can actually publish about the case.”
It needs more than press vigilance to put right what is wrong in the family courts. The cases which really go wrong are at the lower end of the pile where the increasingly stretched press will only rarely tread. It needs proper – and properly paid – legal aid; properly trained and reassessed legal aid lawyers (come back continuing professional development); and a fully-fledged inspection of judges system (like school inspectors, if they still exist).
District judges’ justice
Three recent cases of show how woeful is the standard of justice operated by some district judges on a daily basis. A wife (A) who lived in South Wales had her case transferred accidentally by her local court to Luton. (I was involved thanks to the ‘Bar Pro Bono Unit’: they stretch a point and let people like me in.) A could not afford the travel expenses to Luton for the final hearing of the claim by her husband (B) on their house. The local district judge made an order, in her absence (later she was allowed to attend by telephone). She must sell her home without – as the circuit judge on appeal found – the district judge having given any thought to their respective housing needs. He failed to explain how he arrived at a derisory (for her) pension sharing order and ordered her to pay costs (when courts normally do not do so in finance cases). On appeal a year later the circuit judge allowed A’s appeal (ie wiped out the district judge’s order) and transferred the case to Bristol (not far from where A lived: she had lost confidence in her local court) where the fight goes on….
In the second case the husband (D) had left home 12 years before and had left the wife (C) to look after their son unsupported by him, and to repay the mortgage. (Again I was in court thanks to the pro bono unit (now called Advocate)). The deputy district judge said that was all tough. C must pay D half the value of the house or sell it (their son (now 18) was still living there). C appealed. The circuit judge said D must reduce what the deputy district judge had given him. D agreed to settle for a quarter and for C to have time to raise it.
The last is a case where a district judge heard that one solicitor (S) had acted for a wife (E), her husband (F) and his brother (G) where the district judge knew that she had been ‘advised’ by S to sign a mortgage on the couple’s first home, which gave G 75% of its value on sale or divorce in exchange for G lending half the money – now repaid – to buy the house in 1997. As the law stood when the house was purchased it was well known that a wife in E’s position must be told to obtain separate legal advice on such a blatantly prejudicial deal. Solicitors may not act where the interests of their clients conflict (here it was E v F and G (brothers)). A district judge ignored this conflict and the underlying law. He sent the case to another district judge for trial with E being told she must agree that G should have his 75% on sale. The district judge’s findings made at a negotiating hearing (Financial Dispute Resolution, when no findings should be made) will have to be revisited; but E must wait to see if another judge will override the first district judge’s decision.
On the same day as the Guardian article the Law Society’s Gazette reported the closure of a litigant in person help organisation in Bournemouth. The family court in Bournemouth is one of those in the cases above.
Appeals in each of these cases – and the cost of those appeals in court time (quite apart from the worry for those involved) – might easily have been avoided if lawyers were there on legal aid. And – dare I say? – judges must be supervised from time to time by inspectors who know what they – the judges – should be doing. Criticism from the Court of Appeal is, increasingly, not enough to get lesser judges to put right their ways.
David Burrows
11 February 2020
dbfamilylaw 