A Fair Trial and DIY Law

Government statistics for the period from April to June 2016 show that more than a third of cases in the Family Court have no legal representative for either party. That proportion of unrepresented parties in the Family Court is the highest since the introduction of the Legal Aid, Sentencing & Punishment of Offenders Act 2013 which restricted Legal Aid for family cases. At the time of the introduction of the Legal Aid, Sentencing & Punishment of Offenders Act 2013, approximately 17% of Family Court cases had no representation for either party. That figure has grown to 34%. Cases where both parties are represented have fallen from 40% in 2013 to approximately 27% in the second quarter of this year.

Legal Aid is now only available for Private Family Law cases, such as, contact or divorce, if there is evidence of domestic violence or in child abduction cases. This situation has been compounded by an increase in the time it takes to resolve cases in the Family Courts. The average time for the disposal of a divorce case with financial remedy has steadily increased from 20.5 weeks at the start of 2015 to 24.9 weeks at the second quarter of 2016. Additionally, the workload for Family Courts appears to have increased significantly. Government figures show that 66,328 cases started in the Family Courts in England and Wales in April to June 2016, representing a 10% increase in the same period in 2015.

Against this background, on 30 September 2016, Mr Justice Peter Jackson gave Judgment in the case of Re B (Litigants in Person: Timely Service of Documents) (2016) EWHC 2365 (fam) in which Counsel was criticised and adjournment allowed, for the service of documentation on a litigant in person on the day of the hearing.

In short, this was a final hearing in a child abduction case in which legal documents – Counsel’s Position Statement (14 pages) and 4 Law Reports (100 pages) were given at the door of the Court to a non-English speaking litigant in person (LIP). Mr Justice Peter Jackson commented that “this is unfortunately not an unusual occurrence, and it calls for a remedy”.

In this case, the mother, who wrongly removed the teenager from a convention country to England in February 2016, was the subject of father’s application under the Hague Convention for the return of the child. The proceedings were defended by the mother on the basis that the child objected to the return. The proceedings continued through the Courts in a non-eventful manner and mother appeared as a litigant in person whilst father was represented by Counsel. No specific direction was given by the Court for the timely service of documents on the mother, who was acting without an interpreter.

Mr Justice Peter Jackson, in his Judgment, commented as follows:
“Where one party is represented and the other is a LIP, the Court should normally direct as a matter of course that the Practice Direction documents under PD 27A are to be served on the LIP at least three days before the final hearing, especially where the LIP is not fluent in English. The method of service, usually email, should be specified. Where time permits, the Court should consider directing that the key documents are served with the translation. In cases where late service on an LIP may cause genuine unfairness, the Court should consider whether an adjournment of the hearing should be allowed until the position has been corrected”.

PD 27A is concerned with the preparation of Court Bundles in the Family Division and the Family Court. It governs (in summary) the timetable for preparing and lodging the Court Bundle of papers and states:

“The party preparing the bundle shall provide a paginated index to all other parties not less than four working days before the hearing.

Where Counsel is to be instructed at any hearing, a paginated bundle shall be delivered to Counsel not less than three working days before the hearing.

“The bundle” shall be lodged with the Court not less than two working days before the hearing.

The preliminary documents (including a Position Statement) shall be lodged with the Court no later than 11.00 am on the day before the hearing.

As a practising Solicitor, I can say with some certainty that Solicitors already struggle with the workload and often unrealistic timetables imposed by Court Rules and the Courts themselves. Compliance with PD 27A is difficult.

This situation is further compounded by the amount of LIP’s that are currently attempting to represent themselves in the Family Court in situations where they are unable to afford or secure legal representation.

Conclusion

As a Solicitor, the message is clear. The drafting of a Position Statement prior to any hearing, although helpful to the Court in pointing out the practicalities of a particular case and its history may now not be drafted. If a Position Statement is drafted and is served late, the risks of an adjournment are very real given this recent Judgment. Adverse Costs Orders could follow for the legally represented party. Further, in the case of foreign speakers, who pays for any translation?

This Judgment discourages the preparation of Position Statements which are helpful to the Court.

This Judgment also has implications for timetables given by the Courts themselves. If the Court orders a tight Court deadline for the service and filing of documentation and documents are served or filed late for some other reason, does this in itself not represent unfairness?

What is the position where one party has Legal Aid and the other does not? Is that not unfairness?

I leave you with the case of Re NL (a Child) (Appeal: Interim Care Order: Facts and Reasons) (2014) EWHC 270 (fam) at paragraph 40 where Mr Justice Pauffley expressed the point as follows: “Justice must never be sacrificed upon the altar of speed”.

Paul Summerbell 13.11.16
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

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