(1) Access to Justice in Wales
Legal aid is basically now only available if there is domestic abuse (proven with independent evidence) or child care proceedings. This means that huge numbers of individuals in Wales can no longer instruct or afford a lawyer. This has meant that the only way some people can afford a lawyer is either by their parents paying or by taking out litigation loans. There has been much in the news about how lots of adult children cannot afford to leave their parents’ homes until they are in their thirties. Therefore, this places a strain on their parents. What has not been in the news though is that in addition, their parents are now often using their lifetime savings in retirement to fund their children’s divorces and family law issues. The grandparents are therefore being stripped of their savings at a time when they should be enjoying their lives.
Litigation loans are available but only if a lawyer is approved by a specialist litigation loan company and only if the lawyer can virtually guarantee that the individual will come out of a divorce with enough money to repay their litigation loan. Law firms need to apply to be part of an approved panel maintained by the loan company. Each loan company has its own panel. To be approved a lawyer must be a specialist in their field. Litigation loans come at a price. The interest rate charged is normally 18%. However, some individuals have no choice but to take out these litigation loans to enable them to have legal advice.
Another detrimental effect of the withdrawal of legal aid, is that many individuals now have to represent themselves – i.e. they are litigants in person. This can have adverse consequences for all concerned. Firstly, the litigant in person can find him or herself facing a lawyer on the other side in Court in an alien environment with no knowledge of the law. The litigant in person can therefore lose out severely. Furthermore, litigants in person ( through no fault of their own ) can take up far too much of a Judge’s time which means that Judges’ lists run over and Judges end up having to sit really late to finish their lists or matters have to be relisted, causing delay. Litigants in person can also have an adverse effect on their opponent by ratcheting up their opponent’s own legal bills by constantly phoning/emailing/writing to the opponent’s lawyer.
(2) Do we have a justice system fit for purpose?
There is no doubt that demand is outstripping resources in the Courts. There are far too many cases needing to be heard than there are Judges available to hear them. This leads to huge delays in the Court systems. It can easily take 12-18 months to get from the start of a divorce to the final financial order.
The closure of many local Courts has also compounded this problem.
(3) Lack of continuity with Judges
In many cases, unless specifically requested, there is often no continuity of the Judge in a case. This can also lead to delay.
(4) Specialist Financial Remedy Courts
There is a strong need for specialist financial remedy courts in family law matters. This will ensure that judges who hear these cases will be specialists in this field which should in the long run save time and money. The former President of the Family Division (Sir James Munby) created a pilot project for the same in Birmingham which appears to be going well. There was to be the same specialist pilot project in South East Wales for this very purpose and at its very infancy, before it even got off the ground, it was stopped. Apparently, there was a concern within the courts that it would have an adverse impact on the civil judges and the civil court lists. This was an opportunity missed. However, the pilot project in Birmingham is going so well that it is hoped that the pilot project in South East Wales will be resurrected shortly.
(5) Some possible solutions to some of the problems in Wales’ justice system:-
(i) More funding to be made available to the third sector to help those who cannot afford their own representation.
(ii) Funding to be made available in the same way as litigation loans but at a lower interest rate.
(iii) Parties who can afford it to be encouraged to go to arbitration rather than use up the Court system. With arbitration you pay a private Judge or Barrister to hear cases for you, thereby freeing up more of the Court judiciary.
(iv) Specialist financial remedy Courts to hear financial cases.
(v) More continuity with cases which will speed up hearing times.