The Legal Aid and Advice Act 1949 established a scheme of legal aid intended to provide practical equality before the law 'for those of moderate means'. At its height it cost around £2bn annually and was therefore incredibly expensive. In 2012 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 took away legal aid for parties in most family proceedings. Since then, Judges have had to contend with Litigants in Person (LiPs) turning up with a bin liner full of papers and not really knowing what to do. There has been a growing sense of 'something should be done'...
Recently, Sir James Munby, president of the Family Division looked at three cases. In one case, about contact of a child, the father spoke no English, couldn't afford a translator and was therefore unable to cross-examine the social workers involved. In both the other cases the mother accused the father of rape - in these cases, without legal representation, the fathers needed to challenge the accusations against them, and the mothers faced being cross-examined by their alleged assailants.
Legal Aid is still available in some cases where a party has suffered (or is at risk of suffering) domestic abuse and so in these three cases the mothers (and only the mothers) obtained representation. This clearly brought about an inequality in the parties in court which goes directly against the Family Procedure Rules 2010 which requires the court to ensure 'in so far as practicable' that parties are 'on an equal footing'.
Sir James Munby came up with an unexpected solution - 'If there is no other properly available public purse, the cost will have to be born by HM Courts & Tribunals Service'.
At this stage this is simply a recommendation - no Judge has made such an order, and there is as yet no precedent. It seems we continue as we are for the time being, LiPs will continue to struggle and the court system may clog up with unrepresented parties and their bin bags.
If you or someone you know finds yourself needing to be in court and without representation, do remember that we are happy to work on a 'pay as you go' basis for LiPs. Have a look at our website or contact us for more information - we'd like to think we can help you.