It highlights that whilst the Ministry of Justice estimated that 5,000-7,000 applications a year would be made for legal aid in “exceptional circumstances”, and that the majority of these would be granted, only 57 of just 1,519 applications for exceptional funding made between April 2013 and March 2014 were successful. Of the 57 granted, 42 were for inquests, only eight for family law and four for immigration cases. “Individuals dealing with life-changing legal issues are denied fair access to justice if they cannot afford it,” said Nicholas Lavender QC, Chairman of the Bar Council. “A rise in self-representation is clogging the courts and creating additional costs to the tax payer, free frontline legal advisers are creaking under the strain, pro bono lawyers cannot cope with the demand, and the safety net the Government created for providing legal aid in ‘exceptional cases’ is not fit for purpose,” he added.

The Bar Council called on the Government to change the criteria for funding cases to include cases of “significant wider public interest” and of “overwhelming importance to the client” and to provide funding for initial specialist legal advice and assistance.

The Justice Select Committee’s LASPO Inquiry on 2 September, meanwhile, heard further evidence on the plight of litigants in person in the family justice system. David Emmerson, a district judge, family law partner and mediator, argued that the exceptional fee funding process was unfair, particularly for the most vulnerable. “They’re setting the bar too high… the form itself is almost 30 pages long and you need a doctorate in law to complete it… [in] informal discussions… the Legal Aid Agency [has] almost agreed that if a litigant in person is able to complete that form, they’re almost able to show that they can represent themselves… it’s self-defeating,” he said.

Family Law Bar Association Chair Susan Jacklin QC told the Committee that litigants in person go to court “without the benefit of having had any advice whatsoever... they don’t understand what the effective issues are, they don’t understand what the necessary evidence is and so judges have to spend far too long trying to understand what the case is about”. This puts the judge “in the position of being adviser... and that really does dilute the justice process…[and] adds to the time in court,” she added. Many young barristers representing clients in court had reported to the FLBA that they felt the outcome was not fair for the non-represented parent. “They were very conscious of the fact that they were able to put forward their own client’s case in a very focused and effective way and no matter how good the judge is, especially with a long list, he will be beguiled by the best argument and the most focused case,” she said.