On April 1st 2013 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 took many civil and private law children and family cases out of scope for legal aid, and it was no joke. When I began practising we had a very busy legal aid franchise covering Private Children Act, Public Children Act and Financial Proceedings. Whilst the party receiving advice for financial matters had to repay their fees by way of the Statutory Charge, the fees were significantly less than would have been incurred had they instructed us on a private basis. In short, where necessary (i.e. where parties had no money) they could have legal advice for free if it only related to children or for a lower fee to be repaid where money was involved.
Something had to change as the Legal Aid bill for the country must have been astronomical. I know from experience that where parties were funded for private children matters there was a tendency to argue for the sake of it because clients weren’t feeling the result in their back pockets. However, to simply scrap that support almost overnight did not consider the impact on families who genuinely need support and can’t afford to pay for it. It has been a very black and white law, when we all know that families fall in all shades of grey.
And so, we now find ourselves in a position where more and more people are representing themselves in legal proceedings. In Family Law these could be non-molestation and occupation applications, private children applications, and financial applications. These are technical legal applications. I think Lady Justice King sums up the position quite succinctly in the recent judgment of Agarwala v Agarwala  EWCA Civ 1252, where she said;-
“Whilst every judge is sympathetic to the challenges faced by litigants in person, justice simply cannot be done through a torrent of informal, unfocused emails, often sent directly to the judge and not to the other parties. Neither the judge nor the court staff can, or should, be expected to field communications of this type. In my view judges must be entitled, as part of their general case management powers, to put in place, where they feel it to be appropriate, strict directions regulating communications with the court and litigants should understand that failure to comply with such directions will mean that communications that they choose to send, notwithstanding those directions, will be neither responded to nor acted upon.”
In fairness, this case had been ongoing for 7 years and both parties had bombarded the Court with volumous documents which they did not have permission to file, which explains why King LJ sounds like she was at the end of her tether. But what do you do when the party on the other side is doing whatever they like, and you are trying to follow the terms of an order? How do you explain that you are not being difficult, and there is no underhand conspiracy going on when the other side is so mistrusting of their former partners or spouses? As legal professionals we have to adhere to a code of conduct and we are following such strict guidelines that we cannot act beyond them. Conversely a litigant in person appears as though they can do as they like, but when they do no appreciate common practice or the legal implication of running arguments, there is a very real danger that rather then saving themselves money they are increasing the costs of the application and if their behaviour is deemed so unreasonable they could be left with the other party’s costs order. There is also a risk of the proceedings being drawn out to include hearings where evidence is given, where if represented, these could be avoided.
It’s far from an easier option to act in person, but if someone is going to do that, especially in financial proceedings, it would be a good idea to look at the guidance available which has been published by the Family Justice Council. It is intended as a document for the judiciary to assist in making orders to meet parties’ financial needs after a divorce or dissolution of a civil partnership. It sets out the considerations for the Court, and so if any prospective litigants in person read through this, they could see what is usually involved and what the Courts are likely to do in their matter. But even as legal professionals we are still advising and are up against an individual Judge’s discretion, so it’s only with experience that you can balance the black letter law against what is likely to happen in your local area.
I am obviously biased in this argument, in that I do genuinely believe people are better served by taking good legal advice to ensure that they have the best possible representation. There is a time and place for doing things yourselves, but when it relates to your children or your personal finances, I still think that it is best left to the professionals, because the damage, once done, can rarely be undone.
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