Wednesday, 25 June 2014

Are more litigants-in-person a bad thing for justice?

There have been some interesting cases in the past year. Ones where, with counsel involved, outcomes might have been very different, but that doesn't necessarily mean that justice would have been better served. Two examples in this blog of how justice may have been better served due to a lack of counsel.

I've seen a good number of cases in the past year where leave to remove applications have failed, not because of the non-resident parent's argument, but by the self-representing, relocating parent's dumb ass stupidity. Others where contact disputes were nipped in the bud at the First Hearing and Dispute Resolution Appointment.

Counsel's rights of audience helps reduce the risk of the litigant-in-person putting their size seven firmly in their mouth. Counsel's rights of audience limits the amount of time a litigant speaks, the main risk of such unfettered dialogue being kept to emotionally charged, contradictory, malicious, irrational, possessive or sheer dumb comments under cross-examination or being made to CAFCASS... but does that serve justice, or obscure potential evidence and greater examination of motive?

Balancing this point is that too little allowance is sometimes given for the stress of proceedings on people's actions in court. Also, it's wise to listen to Mostyn's advice that people do act badly when they separate, and if they didn't, they'd probably still be in a relationship. People can do 'dumb-ass' things, but that doesn't necessarily mean they're bad parents, just human. There has to be balance, and courts should be hesitant in holding that a parties' casual or thoughtless words truly represent their parenting styles unencumbered by the stress of proceedings. It's easy for those familiar with court to forget how unfamiliar surroundings, hurt at a relationship ending, fear about your relationship with your child being severed, anger at false allegations... all add chilli to the emotional soup of separation.

Sir Nicholas wall, back in 2010, said that family court decisions were based on analysis of fact. I disagreed. When a judge's evidence includes his/her analysis of the parties' demeanour in court, there's a healthy element of subjective interpretation. When one adds the less stringent and unipolar test for evidence... what is probable rather than what is beyond reasonable doubt (lacking the option of 'unproven'), it's hard to argue that the determination of fact is a precise science. That's not a criticism per se, just a factual observation. Litigants are well reminded that their demeanour in court is an important factor in outcome.

Dealing with contact disputes first. Mr Justice Ryder (as he then was) proposed, in 2007, a different approach in the family courts, with a more inquisitorial rather than adversarial approach. The judge speaking to both parties directly, banging heads together where necessary, and in some ways, being a mediator (with an optional stick as well as carrot). I've seen this work very effectively in the past year (including in the magistrates court), where cases which may have dragged on for 18 months were dealt with in an hour or two at the First Hearing and Dispute Resolution Appointment because both parties were unrepresented. What was crucial, in those cases, were judges (including magistrates in the Family Proceedings Court) whose management of the litigants was, frankly, superb. Therefore I disagree with Butler-Sloss's comments that self-representation will lead to longer proceedings. That will only happen if the judge or magistrates don't exercise control over proceedings. I also disagree that a longer FHDRA is a bad thing, or necessarily more costly for the courts. That said, the ability, training and selection of judiciary is key, and weeding out inconsistency in the family courts.

Looking at leave to remove cases, it's staggering sometimes how a litigant argues for relocation, promising that contact will be supported, while at the same time refusing contact in the UK and acting, frankly, appallingly. Cases in the last year have included both represented and unrepresented parties doing this, and gifting the non-relocating parent arguments to halt the application in its tracks. You then, on occasion, see the party realise how badly proceedings are going, and pay for counsel (who I have some sympathy for), who look at the mess the case is in, and despite trying to present arguments that the relocating parent understands the error of their ways and now promotes contact, a fortnight later looks on (sans hair) as their client refuses to comply with interim orders. Will the relocating parent have and follow good advice when they're several thousand miles away and not subject to the jurisdiction of the UK courts? Methinks not m'lud.

Sorry for the conflicting nature of this blog. If you find yourself asking "are you for or against advocacy?" I can see arguments for and against, and I can assure you that my own musings won't swing things either way. Change is happening, and I doubt that the Government will reverse its decision on legal aid. Realistically, it's here to stay. I believe the lack of advocacy through the withdrawal of legal aid might be mitigated by the inquisitorial approach advocated by Ryder. That said, justice will only be served if we have some damned fine judges, more of them, and the consistency required to ensure justice will require a change in the selection criteria and better training. I have seen improvement in the last couple of years, and outcomes which showed a marked change, but I don't claim that these are universal by any means.

Is there still a place for legal aid? Yes. One area where legal aid needs to be more widely available is in helping litigants with specific learning difficulties. I think it criminal that such parents go into court without representation, and without an advocate. When resources are limited, that, to my mind, should be where the money should go first. I think the provision of legal aid for evidenced domestic violence cases is about right. Should there be more help (and funding) for parents whose children are abducted abroad? Absolutely, especially as these children are British citizens.