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Litigants in Person in Private Family Law Cases

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Litigants in Person in Private Family Law Cases Liz Trinder, Rosemary Hunter, Emma Hitchings, Joanna Miles, Richard Moorhead, Leanne Smith, Mark Sefton, Victoria Hinchly, Kay Bader and Julia Pearce Ministry of Justice Analytical Series 2014 Analytical Services exists to improve policy making, decision taking and practice by the Ministry of Justice. It does this by providing robust, timely and relevant data and advice drawn from research and analysis undertaken by the department’s analysts and by the wider research community. Disclaimer The views expressed are those of the authors and are not necessarily shared by the Ministry of Justice (nor do they represent Government policy). First published November 2014 © Crown copyright 2014 You may re-use this information (excluding logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/ or email: [email protected] Where we have identified any third party copyright material you will need to obtain permission from the copyright holders concerned. Any enquiries regarding this publication should be sent to us at [email protected] This publication is available for download at http://www.justice.gov.uk/publications/research- and-analysis/moj Acknowledgements This research was dependent upon the help of many people. We would like to thank the President of the Family Division for giving permission for the project. We are particularly grateful to Adam Lennon and his team from HMCTS who facilitated access to the five sample courts within a very tight timetable. We would also like to thank the Analytical Services section of MoJ for their support of the project. The five courts cannot be identified to protect the anonymity of our observed cases. Unfortunately this means that we cannot name individually the family justice professionals who were so supportive of the research. However, we would like to thank all the judicial officers, court service staff, lawyers and Cafcass officers at each the five courts for all the help that they gave the research team. We extend a special thanks to the ushers who worked so hard to help us to identify appropriate cases. We are very grateful to the parties, their supporters and legal advisors who allowed us to observe their cases and talked to us about their experiences. We are grateful to both the Nuffield Foundation and Economic and Social Research Council for permitting us to conduct secondary analysis on two studies supported by them: Financial Settlement on Divorce (Hitchings, Miles, and Woodward) and Mapping Paths to Family Justice (Barlow and Hunter ESRC RES 062-23-3184). The authors Liz Trinder is Professor of Socio-legal Studies at Exeter University. Rosemary Hunter is Professor of Law and Socio-legal Studies at Queen Mary, University of London. Emma Hitchings is a Senior Lecturer at Bristol University. Joanna Miles is a Senior Lecturer at Cambridge University. Richard Moorhead is Professor of Law and Professional Ethics at UCL. Leanne Smith is a Senior Lecturer at Cardiff University. Mark Sefton is a self-employed socio-legal researcher. Victoria Hinchly, Kay Bader and Julia Pearce are researchers at Exeter University. Contents 1. Introduction to the Report 1 2. Types of Litigants in Person 11 2.1 Introduction 11 2.2 Characteristics of LIPs 11 2.3 Reasons for self-representation 12 2.4 Partial representation 21 2.5 Competence and capacity to act in person 23 2.6 Particular challenges posed by litigants in person 30 2.7 Summary 33 3. Before the Hearing 35 3.1 Introduction 35 3.2 Considering an application 36 3.3 Making an application 39 3.4 Waiting to go to court 44 3.5 In the waiting room 45 3.6 Summary 50 4. In the Courtroom 52 4.1 Introduction 52 4.2 All the world’s a stage: the full representation default 53 4.3 Case and hearing length – a quantitative snapshot 55 4.4 A typology of ‘working’ and ‘not working’ LIP hearings 60 4.5 Challenges to the efficiency and effectiveness of hearings 69 4.6 Challenges to fairness 72 4.7 Summary 77 5. The Support Needs of Litigants in Person 79 5.1 Introduction 79 5.2 LIP expectations and LIP experiences 79 5.3 What LIPs want or need 84 5.4 Support-seeking strategies 86 5.5 What LIPs get: evaluation of available support 89 5.6 McKenzie Friends 93 5.7 Professional assessment of LIP needs and signposting to services 98 5.8 Summary 99 6. Implications and Recommendations 101 6.1 LIPs after 1 April 2013 102 6.2 Information needs 105 6.3 Emotional support 110 6.4 Practical support and legal advice 112 6.5 Recommendations 123 References 126 Glossary 131 Appendix A 136 Research methodology in detail 136 A.1 The ICS and LCS Samples 139 A.2 Forms of data collection 154 A.3 Access and ethics 159 A.4 Data analysis 164 Appendix B 165 Characteristics of unrepresented and represented parties 165 Appendix C 212 Data from the financial settlements project 212 C.1 Introduction 212 C.2 Involvement of solicitors in divorce cases 212 C.3 Involvement of solicitors in financial order cases 214 C.4 Technical discussion of the case file study data 219 Appendix D 225 Secondary analysis from the ‘mapping paths to family justice’ project 225 List of tables Table 1.1 Observed cases by representation type 4 Table 1.2 Observed cases by court and matter type 5 Table 1.3 Observed cases by hearing and representation type 6 Table 4.1 Roles, processes and tasks in fully represented hearings 54 Table 4.2 Case outcomes following the observed hearing by representation status 59 Table 4.3 ‘Working’ hearings – apparently reasonably fair, effective and efficient 62 Table 4.4 ‘Not working’ hearings – apparently ineffective, inefficient and/or unfair 64 Table 4.5 Factors associated with hearing ‘workability’ 67 Table A.1 Court characteristics 140 Table A.2 The Intensive Cases Study sample, by case characteristics and data sources 144 Table A.3 Number of focus group attendees by court and professional group 154 Table B.1 Characteristics of litigants in person (listed by individual litigant) 167 Table B.2 Characteristics of represented parties (listed by individual litigant) 195 Table C.1: Representation profile of divorce cases at petition/acknowledgement of service 213 Table C.2: Representation profile of consent order application cases 215 Table C.3: Representation profile of contested applications that went to FDA or beyond 217 Table C.4: Stage at which case settled by representation profile 219 List of figures Diagram A1. The Three Component Research Studies ...................................................... 138 1. Introduction to the Report The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 removed most private family cases from the scope of legal aid after April 2013. It was anticipated that the volume and proportion of litigants in person would increase as a result. This report presents findings from a study commissioned by the Ministry of Justice (MoJ) to provide evidence of the experiences and support needs of litigants in person in private family law cases. Litigants in person (hereafter LIPs) define those litigants who represent themselves in court and include a range of litigants who may have received advice or representation at some point in their case. This 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 context Litigants in person have long been a focus of policy concern in many jurisdictions. Lord Woolf (1995: ch 17, para 2) warned against regarding them “as a problem for judges and for the court system rather than the person for whom the system of civil justice exists”, remarking that the “true problem is the court system and its procedures which are still too often inaccessible and incomprehensible to ordinary people”. Despite judicial and policy interest, however, the research base on LIPs is modest. Government-funded work includes Moorhead and Sefton’s (2005) research on family and civil courts and the Ministry of Justice’s relatively recent literature review (Williams, 2011). The MoJ review suggested: that there are “a number of gaps in our understanding of this issue”; that “unrepresented litigants in family and civil cases were common” but often “inactive, particularly in civil cases” (less so in family cases); and that LIPs might face problems “understanding evidential requirements, identifying legally relevant facts and dealing with forms” and coping with oral procedures (Williams, 2011:1). Court staff, the judiciary and lawyers “felt compensating for these difficulties created extra work and possibly presented ethical challenges” (2011:1). The MoJ review suggested evidence on case duration was mixed (partly because cases where LIPs did not participate tended to end quickly). Similarly, “the evidence indicated that lack of representation negatively affected case outcomes, although few of the studies reviewed controlled fully for case complexity” (2011:1). Internationally, Macfarlane’s large, interview-based study in Canada, for example, emphasised problems caused by complex court processes and court guides, confusing online resources which did not meet LIP needs, and “negative experiences with judges” (Macfarlane, 2013:13). 1 The introduction of legal aid cuts under LASPO 2012 for private family law proceedings, in which LIPs were already common,1 brought LIPs under the spotlight again. The Green Paper that preceded the reforms predicted “an increase in the number of litigants representing themselves in court in civil and family proceedings” with the potential for “delays in proceedings, poorer outcomes for litigants …implications for the judiciary, and costs for Her Majesty’s Courts Service” (Ministry of Justice, 2010:4.226).
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