In the past few months I have seen a significant increase in public access (sometimes called ‘direct access’) approaches from potential clients in private law children disputes. This is perhaps unsurprising when the latest figures from Cafcass (in May 2018) show that they received a total of 3,704 new private law cases in that month. This is the third highest total for the month of May since records began. To put these figures into context between April 2017 and March 2018 Cafcass received a total of 42,058new private law cases.This figure shows an 3.8% increasecompared with the previous financial year.
Having recently written a book on the topic (shameless plug: How to Represent Yourself in the Family Court: A Guide for Litigants in Person), perhaps I should take some responsibility for the increase in court applications. Figures from the Ministry of Justice last year stated that neither the applicant nor respondent were represented in 36% of disposals, compared with 34% in the previous quarter. That means parents (sometimes family members) are going to court to negotiate the arrangements for their children without the benefit of any legal representation.
In many ways, I think this is madness. Our children are the most important people in our lives. They mean the world to us. The rules in the family court are complicated. I am absolutely convinced that parents get better outcomes in court where they have the benefit of proper legal representation. It also in my view helps reduce conflict, stress and relationships. This is one of the reasons that I was so frustrated by the government when they significantly reduced legal aid in private law children cases. They obsessed about the short term financial savings and ignored the short, medium and long term health, social and indeed financial savings of providing representation and advice in cases involving children. The real losers are indeed the children.
I suspect it is also the case that if legal aid was there to support parents in disputes concerning children there would be less rather than more cases going to court, as lawyers would negotiate a sensible child focused approach to any such disputes.
I appreciate that lawyers can be expensive. But you receive tremendous support, expertise and indeed value.
So what is public access? Parents and family members (often grandparents from my experience) seeking to make a court application concerning children go directly to a barrister, rather than instruct a solicitor who then instructs the barrister. There obviously can then be significant savings for the client. Although the barrister’s role remains essentially the same, the client would be acting in person and having to do a lot more of the work which the solicitor would have undertaken.
Many clients find this much easier, costs effective and more satisfying. Which comes back to why I have had so many enquiries recently. If the case is too complex for the client to manage themselves, then I will also recommend that they instruct a solicitor. I think (having been one myself) that most solicitors undertake a fantastic job for their clients and are real assets. But I accept that we need to be more creative to ensure that parents (and family members) in cases concerning children are properly advised and represented. I am not convinced that the answer is always for more litigants representing themselves. As without proper legal representation they are not getting the best outcomes for their children.
I will re-enforce this view with my final statistics. Research published by Cafcass in November last year, found that 30 per cent of the 40,599 private law applications involving Cafcass in 2016-17 had been to court before. The majority returned within two years, and almost a third had been to court at least twice before. One child had been the subject of eleven cases between 2005 and 2017. Makes you think doesn’t it?
Jason M Hadden MBE is a barrister at St Ives Chambers