Written evidence from Philip Marcus, LL.M, Judge (retired) Jerusalem Family Court

After my admission as a solicitor in late 1975, and until my departure for Israel in summer 1978, I represented litigants in scores of cases, civil and criminal, under the legal aid scheme, before the courts in and around London.  I was one of the founders of the Duty Solicitor scheme in Tottenham Magistrates Court, one of the first such schemes, in 1977, using the Green Form. But much of the legal aid work was matrimonial.

After moving to Israel, I was admitted as an advocate, and much of my advice and advocacy, in civil, criminal, and family cases, was funded by the Legal Aid Chamber. Once appointed as a judge in 1995 I dealt exclusively with family cases for over 15 years; a majority of the litigants were represented by legal aid lawyers.

Since my retirement eight years ago, I have been researching, writing and lecturing around the world at family law conferences, on family courts and family law reform, on therapeutic jurisprudence and collaborative divorce. Most recently I have been working on prevention of child-parent contact problems and psychological maltreatment of children. In this area, I have researched and written about parental alienation and on the need for family courts to deal immediately and resolutely when PA is alleged, including proper framing of orders with frequent reviews of progress and enforcement of orders with stiff sanctions for non-compliance. Many of my articles on these topics have been published in peer-reviewed publications. A partial list of publications is attached.

I have also had the opportunity to speak at length about family law proceedings in England and Wales with a number of practitioners – solicitors, barristers, McKenzie friends and others –.

For this reason, I feel qualified to present evidence before the committee.

 Israel has a legal aid scheme, means tested of course, and throughout my career as an advocate I represented clients under this scheme in hundreds of cases, at all levels, including the Supreme Court. But what I have to say here also reflects my work as a judge of the Family Court, dealing with those comparatively few cases where one or both of the parties were unrepresented.

 Legal Aid, if properly administered, has two great advantages in matrimonial proceedings, above and beyond representation in and of itself:

 The first is that it enables young lawyers, at the start of their careers, to get valuable experience in interviewing clients and preparing pleadings, and appearing in preliminary applications, and trials.

 But more importantly, it saves court time, at two levels: that of the court secretariat, and that of the judicial officer.

 The secretariat is relieved of the need to inspect each document filed for compliance with procedural rules and basic comprehensibility, and to explain basic principles to litigants in person. 

 Cases involving non-represented litigants are a colossal drain on judge time. The judicial officer is faced with claims which, if a solicitor had been consulted, would not have been filed, as being contrary to the established principles of law, and with defences which are clearly untenable. An unrepresented party may not know about his entitlements at law, and will be unable to know what outcome can be expected from the litigation.

But even if the case is viable, a judicial officer will have to spend much time and energy explaining each procedural stage and each evidentiary issue (some of them somewhat hard to understand even to an experienced lawyer) to the litigants, and worse than that, may appear to be helping in the presentation of the case without knowing all the facts which might have assisted one of the parties if they had been pleaded, or about potential witnesses.

In this regard, the almost impossible task of remaining impartial is exacerbated where one of the parties is represented: in the relatively few cases I dealt with, when one of the parties refused representation or was not entitled to legal aid for financial reasons, the unrepresented party needs even more assistance, particularly if the lawyer is less than scrupulous, but the judge must refrain from giving advice, so as to maintain the appearance of impartiality.

 

The focus of this submission to the committee is on proceedings about children.

In the system in England and Wales at present, there is a basic inequity in granting legal aid to a party who accuses another of violence, and denying legal aid to the person accused. This may encourage the filing of spurious allegations, in order to obtain legal aid in cases involving children; and the ease with which a non-molestation order, often including a ban on contact of a parent with a child, leads to a child losing contact with that parent, often for several months, is well documented. The accused parent is deprived, by the rule excluding from legal aid, of an equal playing field to counter the accusations. In addition, the unrepresented parent, who is naturally under extreme stress from the breakup of relationship, and who may be having difficulties with contact with her/his child, is faced with a complicated system, without guidance as to the applications he is entitled to file, and as to the rules of evidence and procedure. These disadvantages are exacerbated given the restriction on cross examination about allegations of abuse. Such a person is at a distinct disadvantage in discussions with a lawyer, who may, even unwittingly, point to the weakness of the unrepresented parent's position, and cause that parent to abandon opposition and give consent to arrangements which are not in the child's best interests.

 The inevitable result of the absence of legal aid is a substantial increase in the workload at the administrative and the judicial level, which results in increased delays in the completion of cases ; unresolved cases, especially in the matrimonial field, bring about more interlocutory applications and injunction proceedings, and more stress on the minor children, who suffer most from the uncertainty and the preoccupation of the parents with the litigation.

 

These cases take many months to process; but in cases involving child-parent contact, time is of the essence. It is well established that the length of time during which the child has no contact with a parent makes reconciliation less and less possible, and even when it happens, such reconciliation therapy involves substantial costs in time and expense. An order banning contact, given as a result of an allegation of violence or abuse that has not been adequately answered as a result of the lack of representation, may last for several months; even if the court orders resumption of contact after a hearing, the damage to the child has already been caused.

 

It should be borne in mind that Article 7 of the European Convention on the Exercise of Children's Rights, which binds members of the Council of Europe, requires that in proceedings affecting a child, the court "shall act speedily to avoid any unnecessary delay and procedures shall be available to ensure that its decisions are rapidly enforced". An unrepresented party may be unaware of such provisions, and in any case the length of proceedings with an unrepresented party is far greater than if both parties were represented.

In a jurisdiction in which the state provides legal aid for representation of those who cannot afford it, it seems to me that the inequality in legal aid entitlement contravenes the rules of natural justice and due process, and would not stand judicial review.

In the context of family proceedings, depriving one of the parents of adequate access to a court, which includes representation, acts inevitably against the best interests of the child, which can only be determined when both parents have equal opportunities to present their views to the court. Thus the present situation appears to breach Article 3 (best interests of the child, ensuring protection and care for the child taking into account the rights and duties of his or her parents) of the UN Convention on the Rights of the Child (CRC), and also Article 5 (respect for the responsibilities, rights and duties of parents), Article 8 (preservation of the child's identity, including family relations), and Article 9 (maintenance of personal relations and direct contact with both parents on a regular basis) of the CRC. It also appears to contravene the provisions of Article 8 (respect for private and family life) of the European Convention for the Protection of Human Rights and Fundamental Freedoms

Legal aid should not be regarded as a welfare benefit that can be granted or removed according to budgetary constraints, especially where the savings in the cost of representation are far outweighed by the increase in cost to the state of expansion of court staffing and/or the excessive delays in finishing cases.

For all these reasons, there is an urgent need, in the interests of children, for amendments which will provide for legal aid so as to ensure representation of both parents in a dispute involving their children. The child will be the main beneficiary of such amendments; but the exchequer will also benefit, since the cost of extending legal aid will be far outweighed by the savings, in administrative time in the court secretariat, and in judicial time saved.

I will be happy to give oral evidence before the committee, by such means as are available, in order to clarify the above, and to answer any questions.

October 2020