Chair of the Law Society’s Family Law Section, Caroline Hickman, and South Auckland-based barrister Stormie Waapu, talk about the stark reality of having to turn away vulnerable people under the current legal aid structure. The legal aid environment has not kept pace with the increasing complexity in cases and this has only become more difficult with the pandemic.
Being able to access legal help can literally change lives. It can mean escape from a violent relationship, access to children and a fair division of property. But not being able to find a lawyer, or not being able to access legal aid can lead to devastating consequences.
This is particularly stark in the area of family law where lawyers are regularly dealing with people at the most difficult time in their lives. Ministry of Justice figures for 2021 show that Family Law has the highest number of approved legal aid providers at 1,248. However, just 758 of those providers are active.
“It’s heart-breaking when you receive another call from someone who you just can’t take on,” says chair of the Law Society’s Family Law Section, Caroline Hickman.
“I hear stories from lawyers all the time about having to turn people away. That’s not why we join the profession – particularly in the family law area. We’re here because we want to help people. We understand how not being able to access a lawyer affects communities who are desperate for legal help.”
South Auckland based barrister Stormie Waapu is approached daily by people who are unable to afford legal representation and are not eligible for legal aid. Too often she has to turn people away because of what she describes as the threshold being too high. These are people who are the ‘working poor’. She will sometimes provide pro bono services or write off any work done, because she knows that in reality, they can’t afford even minimal legal fees.
For Stormie, those people who don’t have the income, and don’t have the resources, often do not get the access to justice that they are entitled to.
She recalls a case of a father who she was representing in a family court dispute. He had a change in income which meant he no longer qualified for legal aid but this left him unable to pay a private fee. Stormie had to withdraw from the case, and the father was left to self-represent in the High Court. Stormie feels like this is a case where the legal aid threshold failed someone in need, with dire consequences.
“I’m not sure the correct decision was made in the high court. That client had to do it alone. That’s a hard one to swallow, knowing what he ended up going through and what he was up against.”
Based in Hawkes Bay Caroline has been practising in the area of family law and other litigation work for 28 years. Over that time, she’s seen the complexity of the cases she deals with increase, alongside more complex needs of clients.
“The current social and legal aid environment would never have been contemplated when the Family Court commenced as a specialist court 40 years ago. This environment has only become more difficult with the pandemic, and the backlogs in the Family Court flowing from Covid-19 will continue to have an impact, possibly for years to come.
“Legal aid has not kept pace with the increasing complexity. For example, fixed fees in some areas of the law are okay, but in others, such as relationship property they are so far out of line with the time required to do the case professionally that they just don’t represent the cost of doing a professional job.
“I have a client at the moment who I’ve represented for a number of years without being paid. She is now eligible for legal aid. On the last piece of work I did for her it took 7.4 hours and I was paid $83.78 per hour. That fee is before all of the administrative costs of running a practice so actually will represent a loss, especially when privately paid work could be taken on instead.”
For Caroline, it’s not just the cost that is burdensome but the administrative requirements too.
“Legal aid requires me to go back and explain every time something takes longer than the prescribed steps they use, or requires a different approach.
“With legal aid you get paid a set amount for a set piece of work. There are some wins but more often there are complex cases that require work outside the steps. It’s hard to keep going back to legal aid to ask for more money and to have to constantly explain your actions. It is a huge burden and can lead you to giving up before you’ve got anywhere.
“The Law Society’s Access to Justice survey provided a stark reality check of the true cost of a poorly resourced legal aid system for court users as well as lawyers. The same concerns apply for remuneration of court appointed counsel.
“The shortage of family lawyers is a direct result of this, and the Family Court cannot deliver justice to its people without lawyers providing advice, advocacy, and support. The shortage of family lawyers and the further increase in self-litigants will create a higher cost to government as well as having a higher human cost.”
People self-representing because they can’t find or can’t afford a lawyer is something that Stormie is all too familiar with. She sees people all the time who self-represent due to an ineligibility for legal aid. She says they often they break under the pressure and just can’t cope.
“There was one father I was dealing with as a Lawyer for Child. I needed him to get involved. He just couldn’t deal with the stress. He kept saying ‘I just can’t cope with this, I already have so much to deal with’. Even the kids were saying ‘we want to see our dad’. It’s well known that there’s better outcomes for children when both parents are engaged and participating and working towards improving their situation for their children.”
She worries too that the financial strain of those who don’t qualify for legal aid, in combination with other underlying personal or health issues, mean that some people simply give up.
“I really feel for them, and what they’re going through. As a Lawyer for Child, there are parents I come across that can’t afford legal representation and do not qualify for legal aid, and they are trying to do it themselves, and it’s a lot of work for the Court and I, trying to help them through the process.”
If nothing changes for legal aid the future for family lawyers looks bleak. Few firms can afford to bring on junior staff and have them doing legal aid work so the next generation of legal aid lawyers are not coming through.
Stormie believes the whole system is broken. It is not serving the vulnerable people who need it most. She also feels that the burnout legal aid lawyers experience from consistently going over their allocated hours is going to drive lawyers away from taking legal aid cases, and away from the profession.
The Family Court cannot deliver justice to its people without lawyers providing advice, advocacy, and support. The shortage of family lawyers and the further increase in self-litigants will create a higher cost to government as well as having a higher human cost.
“A lot of us, long term, we’re thinking is this really what we want to be involved in? Can we sustain this long term? And the answer is no. If the system doesn’t change, doesn’t adapt, then for me I’ll be looking at other options. I’m not going to burn myself out. I have aroha, I want to help people, but it’s emotionally draining.”
For Caroline she has to limit the number of legal aid cases she can work on at any one time due to the low rates and administrative burden. That’s not something she wants to do but for her business to survive she has to put those limitations in place. She wants the Government to heed the calls being made by the profession and to increase the funding for legal aid as well as addressing the threshold for eligibility.