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Divorce law blog

Cuts on public funding - the impact on the family courts

13/07/2012   By: Andrew Moore

The Government is introducing wide-ranging cuts to public funding (legal aid) from 1 April 2013. The majority of cases that were eligible for public funding may not be eligible next year. The effect will be an increase in people representing themselves at court (sometimes called ‘litigants in person’) due to an inability to pay legal fees.

The advantage of having a legal representative is that they will prepare their client’s case for the court hearing. This usually includes the obtaining of evidence (both expert evidence and gathering paperwork from a range of sources) and sending it to the court and other participants in the case within set deadlines. Legal advisors will also prepare bundles (lever-arch files) of evidence and other documentation in such a way that the judge can access the papers easily.

At the hearing itself, legal representatives (whether a solicitor or a barrister) are able to ask witnesses questions that are relevant to the case and assist the judge in reaching a conclusion. The benefit of a legal representative asking the questions is that they should remain objective and not get angry or emotional in dealing with what can be very difficult issues for the parties involved in the case.

Without solicitors and barristers being involved, the court could be left with a situation where parties attend a hearing with no evidence or produce volumes of paperwork on the day of the hearing leaving the judge with insufficient time to consider it. Also, for the majority of litigants in person, cross-examining a family member will not be a pleasant experience. With the relationship already in difficulty, having to pose your own questions, which are likely to be emotionally charged and not objective, could make co-parenting (in children cases) after the court case very difficult indeed. Without legal advice it will also be very difficult for litigants to know what the merits and weaknesses of their case are, which will make settling cases, and avoiding the court room altogether, less likely.

Mr Justice Ryder, who is the judge in charge of modernising the family courts, has confirmed that a ‘statement of inquisitorial principle’ will be published before the changes to public funding take effect next year. This document is likely to define judges’ roles in proceedings. One change might be that the judge will ask the majority, if not all, of the questions instead of litigants in person having to cross-examine each other. Judges will have to ensure the hearings remain structured and that necessary evidence is obtained so that they can make a decision in the time available.

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