They create an industry to make profits then blame themselves
Legal aid shortfalls leave people forced to represent themselves in court
9:30 am today
Krystal Gibbens, Reporter
@KrystelleBelle krystal.gibbens@rnz.co.nz
The Law Society warns the legal aid system is not able to meet needs. Photo: RNZ / Cole Eastham-Farrelly
Instances of people representing themselves in Family Court have more than doubled in the last 10 years.
Data received under the Official Information Act showed that the number of Family Court cases involving a self-represented party has steadily increased each year from 602 at the end of May 2014 to 1888 at the end of May 2023.
At the same time, legal aid numbers have also fluctuated.
The OIA data showed that the number of grants for legal aid by calendar year in Family Court was 21,396 in 2013 compared to 17,403 in 2022.
Civil grants also saw a drop across that period, while criminal grants overall increased.
The Ministry of Justice has attributed the decrease in family and civil legal aid grants to court protocols that were implemented during Covid, particularly the Delta outbreak, which meant fewer family and civil cases were entering the court, and fewer legal aid applications were made.
Research by the Law Society in 2021 found that more than 20,000 people were turned away by legal aid lawyers in one year.
New Zealand Law Society president Frazer Barton said people being turned away from legal aid due to a lack of supply was not good enough.
“Our system starts collapsing at that point,” he said.
He said it was really important for people to have legal representation.
“And if they can’t pay for it themselves, then they need legal aid.”
He said imbalance in that system could lead to injustice, and they were now seeing a lot of people self-representing.
https://flo.uri.sh/visualisation/14618831/embed?auto=1
‘Near impossible’ – Angela’s* story
Angela told RNZ she had sought legal aid many times.
She said many of the lawyers she has rung have told her they are no longer taking legal aid cases. Those that were have often told her they do not have the capacity to take her case.
“You cannot find a legally aided civil lawyer who will do a Family Court judicial review, or an appeal at short notice. It’s near impossible.”
Angela instead represents herself in Family Court. She said navigating the court system by herself was challenging.
“You’re expected just to know how to do all these filings and if you get one bit wrong, it’s not accepted for filing and then you become more disheartened because you’ve gotta go back and spend more hours [on it].”
She said having to do all the legal work and cross-examine witnesses with no legal advice put her at “a massive disadvantage”.
Angela’s court experience has been drawn out and chequered with disputes.
She had custody of a high needs child, and said she was also a victim of domestic violence.
Angela recollected a court hearing where she faced her abuser in court as traumatic; “on my first day, breaking down in tears frightened to be in the courtroom with the man who assaulted me”.
But despite the distress she was feeling, she said she still had to cross-examine witnesses.
She said it was hard for a domestic abuse victim to have to put together cross-examination questions about threats they had faced.
“[You’re] reliving it as you’re writing it, hindering your ability to actually address your case as a lawyer could do it without all the emotion.”
She would like to see it become mandatory for the courts to provide lawyers for victims of domestic violence.
Angela told RNZ because she could not get a legal aid lawyer she was now also being charged court costs.
‘Alienated from children’ – Lisa’s* story
Lisa also represents herself in Family Court.
She told RNZ she left her partner due to regular exposure to family violence.
She described herself as living “hand to mouth” and unable to afford frequent costly lawyer fees.
Lisa said she had previously used legal aid, but now earned too much to be eligible.
She said her experience with legal aid had also made her lose confidence in the system and she had experienced more success representing herself.
But Lisa said not having a lawyer to stand up for her and help navigate the system disadvantaged her, and possibly affected the outcome of court proceedings.
She alleged that she had been alienated from her children by her former partner who had custody.
“I believe if I’d been represented back beyond the alienation starting – and it had been a lawyer at the same calibre – then I would have both children coming into my home on a fairly similar care ratio.”
Lisa said she did now have visits with one child.
But while representing herself she said she had at times felt bullied by the opposing lawyer.
https://flo.uri.sh/visualisation/14619000/embed?auto=1
Equitable system needed
Auckland University law professor Mark Henaghan said access to justice was costly and some people were not getting a fair crack at it.
He said those that self-represent were at a disadvantage as the court processes were complex and they may not know how to navigate the justice system.
“Knowing the law and knowing the laws of evidence and knowing how to do all the paperwork, they’re highly complex issues which you know takes years of training and experience to get really highly good at them.
“That’s tough for people to be able to deal with, even with the judge, you know, trying to help them as best they can.”
He said the country needs to find a way to make our justice system more equitable.
Legal Aid at ‘breaking point’
Barton said the legal aid system was also at a “breaking point”.
An Access to Justice survey for the Law Society in 2021 found that the key reason for wanting to do less legal aid work was inadequate remuneration.
Barton said while the profession had always been prepared to do legal aid at a “concessionary rate”, it hadn’t kept up with inflation, and pressure was now mounting.
“Older people are retiring, others are leaving these work types and we haven’t got the next generation of people coming through.”
He said to encourage the next generation of lawyers the rate of remuneration and structure of legal aid needed to be addressed.
Ministry responds
Acting Chief Operating Officer Tracey Baguley said the Ministry recognised the important role legal aid played in providing access to justice and was committed to improving the legal aid scheme and ensuring everyone has equitable access to justice.
In the last year alone the hourly rates for all legal aid lawyers were increased by 12 percent. Hourly rates for Duty Lawyers were also being increased by 17 percent, Baguley said.
She said eligibility thresholds had also been raised, the $50 user charge on some family and civil grants removed and a new Kaiārahi Family Court Navigator role introduced to provide additional support to participants, including self-represented people.
The Ministry of Justice said this year family and civil legal aid grants were on track to be the highest in the past 10 years.
*names have been changed
