As of the first of this month, the Government’s cuts to legal aid came into effect. Areas which no longer qualify for funding include private law cases where couples are separating and determining living arrangements for their children.
There are, of course, exceptions – cases involving domestic violence (although the threshold is a high one), forced marriage or child abduction issues, mental health cases, asylum, and debt and housing matters where someone's home is at immediate risk will all still be eligible for aid – but it remains undisputed that the impact on family courts is probably going to be significant, although how and on whom the impact will fall is unclear: some children and some families will be better off without litigating.
In order to gauge this impact as far as we can, Cafcass is launching a pilot in our Manchester office, which will measure the changes that result from an increase in litigants in person in family court cases. We’re going to track the length of cases, to see if the duration increases, and also any increase in the time our staff (practitioners, business support staff and managers primarily) spend on questions and requests for help previously handled by lawyers. We advise our staff never to give legal advice, as they are not qualified to do so (apart of course from the lawyers in Cafcass Legal). However, many requests for help are in a grey area between legal and social work advice, so it will not be easy for all concerned.
Fortunately, some help for litigants in person already exists: face-to-face services such as Citizens Advice Bureaus and Personal Support Units are in place, as well as helpful websites and publications from various organisations. These services can help litigants in person understand the more complex parts of cases, such as evidential requirements, the identification of legally relevant facts and presenting their case effectively.
HMCTS is also doing their part, undertaking work to make courts and relevant forms easier to find. Guidance on court forms is being revised and redrafted in plain English. With hope, these measures will help reduce delay in cases.
In the absence of paid legal assistance, we also expect to see a rise in the number of McKenzie friends. McKenzie friends are usually volunteers, who do not have to be legally qualified, who help litigants in person.
While these and other sources of support are in place, a number of questions still remain to be worked out in practice. For instance, DNA, drug and alcohol testing, ordered by the court, for an individual who is not legally aided, could cause problems because the party may not be able to afford the costs of the tests themselves. How will these tests then be carried out? Discussions at the Family Justice Board level are being held about this, aimed at finding a solution.
Many answers remain to be seen, but we and other professional bodies will be tracking the changes and their impact on children and families.