Thursday, 23 October 2014

Litigants-In-Person: Government Proposals, Too Little, Too Late

It would be nice to write a blog piece which wasn't negative in respect of the Government and their grasp of life in the family court

Today, the Government announced a £1.4m fund to help litigants-in-person by expanding the Personal Support Unit, an advice service based at the courts, to help counter "the courts being at breaking point" (according the Resolution, and we agree). Were it not for the paltry amount, I would applaud.

According to an article in today's Guardian, as many as 650,000 people were affected by legal aid cuts, mainly in cases involving family disputes, welfare benefits, clinical negligence, employment, housing, debt, immigration and education.

By our calculation, that's £2.15 per person, which should cover the cost of the advisers' pens if not their bus fares, with a hope that law students and solicitors give up their time for free in lieu of a salary.

Simon Hughes, Justice Minister, went on “There should be no litigant in person who doesn’t have the opportunity of getting both online advice and advice in person,” Hughes said. “We are trying to grasp the nettle. It would have been needed even without legal aid changes but they have made it necessary.”

Let's remember that the Government's flagship online product 'Sorting out Separation' still gives no advice or information on the practical process for applying to the court and case management. Other mainstream sites fail to answer the most basic of questions. How do I write a statement being just one (and the litigant being referred to matters related to school).

While grateful for the work of the PSU, the volunteers that give up their time, and the service being expanded, it's not enough. The Government acts as a mechanic faced with a car that's broken down, and seems to believe that polishing the bonnet is the solution. Solutions have to be fit for purpose, and address both the problem and the scope of the problem. Otherwise, the solution fails. To date, its venturing into online solutions has produced woeful results.

Family Court process has complexity due to the sheer volume of court rules which must be satisfied [as Mostyn J reminded litigants recently in judgment] and a system designed for advisers who spent years in training. The system is complex beyond the application stage. The onus is now on the litigant to prepare court bundles, skeleton arguments, position statements, indexes, reading lists, statements of evidence, and we could go on, and on, and on. Cross-examination is a nightmare for litigants when they face their ex-partner. Dumbed down advice can be more dangerous than no advice at all.

[On this latter point of cross-examination, a simple step to help would be the judge routinely carrying out cross-examination, and widening their inquisitorial role to include the adversarial element of fact finding where parties are unrepresented. Questions might be handed to the judge by the litigant.]

While appearing as a grumpy old man, the Custody Minefield has at least done more [self funded] than the Government to provide information to litigants-in-person to help them navigate the complexity of the court.

Hughes' comments that there have 'always' been "lots" of litigants-in-person is a little wide of the mark. The number of private family cases where both parties were represented dropped by 40% between April and June this year alone. 10 years ago, the phenomenon was relatively rare in the family court. As an example, if taking a McKenzie Friend to court in those days, courts would often be quite confused, you would need to provide authorities to support the litigant in asking for lay assistance, and the 2008 President's Guidance was entirely necessary. The absence of people knowing they could self represent was, to my mind, a key reason why so many children lost contact with their non-resident parent. Even today, there remains confusion in the court which results in litigants being inaccurately advised. A clerk to my local court warned a litigant-in-person via email that they couldn't seek advice from anyone who isn't a party without the court's permission [ahem... Rule 12.75 explains the circumstances when they can!]. What advice on other sites on this issue? The screenshot above was taken today (as was the one further above). In the past, the relatively small proportion of litigants-in-person could be supported by the relatively small number of experienced McKenzie Friends.

Anthony Douglas, Chair of CAFCASS commented “They [litigants] are going through profound emotional distress, broken-hearted, betrayed and angry. Often [what’s important] is improving their relationship capability rather than having a definitive judgment.”

He is right to raise this point, as technical legal advice is only one aspect of what a solicitor or experienced McKenzie Friend would provide. We see plenty of cases where things have gone wrong by the time we're asked to get involved. Litigants making the wrong choices due to being emotional. Believing they can manage their case when they lack the skills, proud of their 80 page statement which obscures the strong points of their arguments. That they're a lousy litigant can make them appear a lousy parent. Emotion at a stressful life event, and the overwhelming experience of handling case management without, frankly, a clue as to what they're doing can lead courts to assume that how they present themselves in court is representative of their parenting in day-to-day life and lack of emotional restraint. 

Let's give an example. Joe Bloggs believes a 'social worker is a liar and biased'. He's reached this conclusion because the social worker got his or her facts wrong. An emotional reaction to someone saying something which isn't factually accurate. It happens. Social workers are overworked, overloaded, and human. Mistakes get made. A good solicitor or McKenzie Friend may suggest alternative wording that 'the social worker is mistaken', then go on to explain how. Rather than getting caught up on this emotive issue and risking alienating the social worker, better to simply address the point in a reasoned and reasonable way, and move on to advance the child focused arguments which underpin the case. In absence of this, the social worker risks becoming alienated and actually losing their impartiality, the litigant gets presented as combative and helps this view by continuing to drive home a point without thought. Legal representation places a barrier between the litigant's unrestrained emotions and their ill-considered comments and reactions. Advocacy is a skill, as is presenting an argument whether orally or in writing. While it's arguable that it might be more just for judges to see litigants as they are (tempered by understanding that the litigant is under exceptional stress), where one party is represented and the other not, there is a distinct lack of 'equality in arms' as one party's argument is tempered by objectivity while the other's is not. Should being a lousy litigant result in opinions that the party is unable to restrain themselves in childcare? It happens. 

What Douglas's universal service will be, I don't know, but it seems to have a foundation in empathy and understanding of the hurdles which a parent faces in court, which we hope carries through to his proposals. Much needs to be done. The sticking plaster announced today is simply that. A band aid on a gaping wound.