KENNEBUNKPORT — As we in Maine Guardian ad litem Alert have become more familiar with Maine’s family courts, through our friendships with many victims of the guardian ad litem program, we have felt a growing concern about access to justice in the family courts.

Barriers to accessing justice come in many forms: the cost of legal services; difficulty in understanding the concepts, language and protocols of the law; intimidation by an unfamiliar legal culture; the inability to evaluate one’s lawyer’s skills, and barriers imposed by disabilities and limitations of users. Justice in these cases is frequently inaccessible and seems reserved for the very poor and the very rich.

One symptom of the access problem is an ever-larger number of people who are forced by economics to represent themselves in court (so-called pro se representation).

Statistics for pro se representation in family courts are hard to come by, but most national authorities, like the National Center for State Courts, estimate that more than half of the cases appearing in family courts are represented pro se, and the trend is growing. Canada’s Supreme Court, in its October 2013 report, “Access to Civil & Family Justice,” also notes the majority proportion of self-representation.

Pro se representation poses problems for both the court and for those who represent themselves. For the courts, it introduces a player who lacks the knowledge, skill and experiential tools of a trained lawyer and who, understandably, will be clumsy and ignorant about how to use a court. Also, various judges handle pro se representatives in various ways: some kindly, others decidedly not.

For the self-representing party, the role is one taken out of financial desperation, and the prospect of being on your own in court is extremely intimidating. The pro se person is fighting an important personal battle with a legal pea shooter, while the party with a lawyer has a cannon! These representational competency dynamics alone reduce the access to justice. It is not a level playing field.

The problem of access to justice in Maine (and other states) is largely economically driven. You have a fair chance of accessing justice if you are very poor and eligible for a variety of subsidized services; your quality of access is infinitely better if you are very rich. It is the very large demographic range of the middle classes who have a big economic problem affording the cost of justice.

A large category of middle-class people are effectively excluded economically from access to justice just by the price tag. This is even worse if a middle-class person wishes to appeal a lower court decision to a higher court. It is an endeavor that will cost tens of thousands of dollars. It constitutes a serious deterrent, blocking access to higher courts, and tells society that getting justice is about having available dollars.

Acceptance of a troubling lower court decision may not signify agreement with the court. It may be a statement that one cannot afford further legal action. In many such cases, “silence does not give consent.”

There are some limited remedies to the economic deterrents to accessing justice, largely for poor people, coming from the charity of the legal profession: “pro bono” services, student lawyers, legal funds available for poor persons. Unfortunately, benevolent services, for the most part, stop with middle-class status.

Yet middle-class status doesn’t automatically confer an ability to afford justice, since middle-class people frequently have limited budgetary flexibility. Begging, borrowing, mortgaging and self-impoverishment are not the answer to accessing justice in a democratic society.

Maine, like many other states, is gradually evolving a two-tiered system of access to justice: good-quality legal practice for those who can afford it, and pro se access for a steadily growing number of middle-class people. It is the legal “secret” that dare not speak its name.

Canada is analyzing the same issue of access to justice. In the report from that nation’s Supreme Court, there is a clear statement of purpose that everyone needs equal access and the most badly served group is the vast middle class. The report proposes a variety of creative ideas. We need to address this issue and would do well to look north and consider this report to the people of Canada.

Maine needs a blue ribbon commission to look at family court reform and to make access to justice equally available to all.

— Special to the Press Herald