Access to justice for poor people
Dear Mrs Macaulay,
I appreciate your advice as given in a recent letter in respect of the husband abroad who was seeking to take away his wife’s child. It was as usual excellent, but you have not addressed the question of affordability. More specifically, what is your advice to the wife who does not have the funds to initiate the proceedings on her own behalf?
Too often it is the poor who cannot find justice in our courts. Please let me hear from you and please publish a set of outlines and rules to follow for these people who have been wronged but who cannot afford the services of an attorney.
— Dr Jephthah Ford
Dear Dr Ford,
Dear Dr Ford,
I have to extend my thanks to you on two counts. The first is that you have been a constant and faithful reader of my column and I thank you for this and, secondly, that you have taken the trouble to write to me about a lacuna in one of my previous articles. Many people who are faithful readers speak to me about my articles and their usefulness and some even go further and talk about matters of concern which they wish me to deal with. They do not, however, as you have done, write to me about these concerns. I really thank you for this.
You have made a very valid and important point which is, as it is referred to in law and in international human rights law, the issue of access to justice by the poor, the majority of whom happen to be women all over the world. You are correct in that in my recent letter I did not deal with the issue of affordability and therefore access to justice for the wife.
You have asked what would be my advice to a wife who does not have funds to initiate proceedings on her behalf, and for people who need to have access to justice but cannot afford to pay for the services of an attorney.
Well, Dr Ford, I am sure that you are aware that on the matter of legal aid for persons in difficult financial circumstances, the provisions for this in Jamaica are not as they should be. In fact, if I recall, the assistance now given in criminal cases and even in the most serious ones when representation of an accused is an absolute necessity, is less than it used to be in the years when I was a defence attorney in the criminal court. The reason given is, of course, the lack of resources.
When it comes to civil matters, within which the circumstance of the wife in the letter you referred to falls, there is no regime in place for applications relating to custody, care and control and maintenance of children in the Supreme Court. And people who retain attorneys for these matters enter into contracts (every time an attorney agrees to accept a retainer and fees are fixed and are discussed or fees are to be paid as billed periodically, a contractual relationship is formed between the attorney and client). The level of fees charged is personal to each attorney depending on their experience and the complexity and length of the matter. The only stricture is that the fees ought not to be exorbitant, but ought to be reasonable in all the circumstances. Attorneys’ bills or fee sheets are subject to be taxed by the taxing master, the registrar of the Supreme Court if the matter was in that court, or the Resident Magistrate if the matter was in that jurisdiction and was a civil matter.
Matters of custody, care and control and maintenance can also be heard in any of the Family Courts in the island. All these proceedings in the Family Court are free of charge as far as court costs are concerned. This court was set up to deal with the issue of access to justice for the poor and those in difficult financial circumstances, the majority of whom are, one must underline, women, so that the need for representation by attorneys was not an absolute necessity. The concept was that it would be an informal court which would assist with the preparation of the applications within the courts’ offices by clerks of the court, and for the service of the documents on the respondents without any financial input by the applicant.
Again, the concept was that the parties would appear in person to ‘speak’ with the judge about the matter, who would take time to resolve, if possible, what was recognised as emotional, family, private matters. You would recall that the proceedings in the Family Court are held in camera so that the parties can speak openly about their private familial problems. If the ‘talk’ with the judge does not resolve the matters, then a hearing can be fixed by the judge for evidence to be taken and a resolution made by him or her. In these circumstances no question of fees to be paid to an attorney would arise, which was in keeping with the original concept.
The practice has developed that some parties retain attorneys to represent them in the Family Court. In such circumstances the judge would ask the other side who is appearing in person whether they have or intend to retain an attorney to represent them. Some do and some do not. Remember, each person has the right to appear by a legal representative if they so choose.
There is in the Supreme Court in relation to divorce petitions, the office of an Official Referee who is charged with appearing for persons in difficult financial circumstances who need a legal representative to act for them. This officer does so free of charge. I know, however, that this facility is not used very often.
So, Dr Ford, I really cannot provide any outlines or rules to follow to people who have been wronged and who cannot afford to pay for the services of an attorney. Persons who need assistance can and should approach attorneys and enquire whether they would agree to do a matter pro bono. Many attorneys in fact, on their own initiative, when they are aware of the difficulty the client is undergoing financially, often decide to do the matter pro bono or at a very reduced rate to merely cover their expenses
Until such time as Jamaica can afford to set up a real and comprehensive legal aid regime to ensure universal access to justice for all, I am afraid that persons in need have to try and make approaches to lawyers and to the officers of the respective courts to seek assistance.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.DISCLAIMER:The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
DISCLAIMER:
The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.
