The research report, Litigants
in person in private family law cases
Trinder, Rosemary Hunter, Emma Hitchings, Joanna Miles, Richard Moorhead,
Leanne Smith, Mark Sefton, Victoria Hinchly, Kay Bader and Julia Pearce was
published by the Ministry of Justice (MOJ) at the end of November 2014. The report was completed
and submitted to the MOJ in September 2013.
This report presents findings from a study commissioned by the MOJ to provide evidence of the experiences and support needs of litigants in person (LiPs) in private family law cases. The study focuses on the experience of LiPs prior to the legal aid reforms in April 2013. It was designed to inform policy and practice responses to LiPs following the legal aid changes.
The below implications and recommendations have been taken from the report.
The available evidence suggested that the majority of represented parties in the sample who were in receipt of legal aid would no longer be eligible for legal aid after the LASPO reforms.
In comparison with the observed pre-LASPO LiPs, the researchers would expect that LiPs post-LASPO would be less likely to be partially represented and more likely to present with vulnerabilities which affect their capacity to represent themselves effectively and create challenges for the courts in terms of safety at court, testing, disclosure and safeguarding children.
The adoption of coordinated information strategies by MoJ and the Family Court is required to meet LiPs’ information needs.
LiPs’ needs for emotional support can best be met by the admission of ‘volunteer’ (family member/friends/third sector) McKenzie Friends.
Strategies to meet LiPs’ needs for practical support and legal advice should include the consistent adoption of a more active/inquisitorial role by family judges, universal availability of initial legal advice, and wider availability of legal representation in court proceedings where required in the interests of (individual or collective) justice.
This report has identified that LiPs have considerable needs for support across several dimensions. It has also identified what the researchers consider to be best practices for meeting those needs, based on the team’s review of the literature and the observations and interviews with LiPs and family justice system professionals. It has not been part of the research team’s brief, however, to analyse the cost-benefit of these proposals or to produce a fully worked-up blueprint for change. This section, therefore, summarises the broad recommendations arising from the team’s analysis of the literature and the research data. Further detailed policy and operational consideration will of course be required to determine how these recommendations could be implemented.
That all relevant family justice communications, including forms, leaflets, practice directions, templates and pro forma, are re-evaluated from the perspective of LIPs and (if necessary) redesigned with their various needs in mind.
That a single authoritative ‘official’ family court website is established with all the resources that a LIP needs in one place.
That the court’s communication with parties prior to the first hearing is used more effectively to convey important information to LIPs.
That judges are encouraged to give LIPs clear verbal instructions and guidance on process and procedure.
That the court service provides increased opportunity for face-to-face inquiries with relevant court staff and that guidelines and training for court staff are devised to facilitate information-giving whilst avoiding giving advice.
That there is a presumption that a single family member, friend or volunteer may accompany a LIP in court to offer emotional/moral support without the need to submit a formal CV.
That consideration is given to the development of a code of conduct, practice guidance or regulatory framework for paid/’professional’ McKenzie Friends.
Practical support and legal knowledge
That initial legal advice to facilitate dispute resolution and, where necessary, for initial preparation for court proceedings is made universally available.
That providing support for LiPs in a consistent way in both semi-represented and non-represented cases is understood as a key element of the judicial role; and that judicial officers receive appropriate guidance and training to do so.
That measures are introduced to ensure greater availability of and access to exceptional case funding in private family law matters.
That a mechanism is introduced to enable judicial recommendation for the provision of publicly funded representation in the interests of justice.
That the MoJ consider which other forms of legal and procedural assistance outlined in this Chapter for LIPs engaged in court proceedings can feasibly be supported or implemented.
Follow up independent research is needed to examine the impact of the legal aid reforms on the types and experiences of LiPs, their impact on the court system and the effectiveness of innovations and services to support LiPs.