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.

Family Law App: Help with Crisis Situations and More

In the event you missed it, we've built our Crisis Menu into our main Resolving Disputes section.

You'll find practical, step-by-step answers and approaches to the most common crisis situations, whether your children and ex-partner are missing, you're facing a psychological assessment, there is risk of domestic violence, the children are at immediate risk of harm, it's disputed you're the father, you're not seeing your child, you face false allegations or your ex-partner is threatening to take the children abroad or move some distance away.

Whether or not the parent faces these crisis situations, knowledge of what you might do in these situations can reassure and reduce stress. 

Sections on Contact Enforcement, Internal Relocation, Leave to Remove, Parental Alienation and Paternity Testing will have dedicated case law libraries in support. We should have this section of the project concluded within the next two weeks (three of these libraries are already live, and we'll be reviewing case law as we go).

New on our Resolving Disputes Menu is a dedicated Welfare and CAFCASS section, including guides on CAFCASS, Family Assistance Orders, the role of the Guardian-Ad-Litem, Parenting Information Programmes, and a new page giving suggestions when meeting CAFCASS. 

Click on any of the images to be taken directly to those pages or use the links.

Time: Family Law Reform, Advocacy, and Child Welfare

Time is critical in a child's life, and in resolving parental disputes. Long court cases and uncertainty cause stress, depression and other illnesses which can impact on both parents and children (not to mention work and finances, the wider family and the public purse).

The timely resolution of parental disputes was one of the key principles upon which the Children Act was based. yet almost a quarter of a century later, court cases simply take too long.

A Case in Point

Why am I blogging about this today? Another case where a raft of contradictory allegations are unexpectedly dropped into a case at the last minute, alluding to child abuse over years which was never mentioned in earlier proceedings or applications. Given the nature of the allegations, contact is stopped until the allegations can be investigated. CAFCASS have announced they are unable to report for three months. Thoughts of supervised contact are delayed until statements are submitted and future hearings listed, which delays things by at least another month. Supervised contact might be agreed at the next hearing (dependent on the cramped judicial timetable, availability, and in the absence of the CAFCASS report), and then booked, carried out, and reported on... all of which creates further delay. The hoped-for judicial continuity hasn't happened. The Circus has come to town again!

As often happens, there is no independent evidence of abuse. Without going into details, all evidence actually suggests a very happy child, with no behavioural or emotional issues, and allegations are based upon the word of the party who could have raised these allegations on numerous occasions in the past, but didn't. The accuser places themselves in the somewhat surprising position of having sent their child to contact for a long period of time despite 'seemingly' believing abuse was taking place. Forgive me for being a little suspicious... I have little doubt it will be found that there are no welfare concerns when investigations are concluded, but also that there will be no sanctions for false allegations having been made.

...so back to the Children Act 1989, at section 1(2):

In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

How is it that a three month delay, before CAFCASS can report, is acceptable? Why can't CAFCASS report within 7 days. Their resources won't permit it, I know... but the same amount of reporting will still be done by them, the same amount of time spent on meeting parents and writing reports. The delay is caused by their backlog of cases, which needs resolving, and means no officer can be allocated for weeks. 

The problem is we don't expect cases to be resolved quickly. We become used to delays, and it becomes acceptable that the child's welfare will suffer. That's the reality of this case and for this child and many others. The delays are accepted with shrugged shoulders. It's acceptable for child welfare to suffer. 

Broken contact and false allegations, perhaps being two of the most vicious forms of emotional/psychological abuse, aren't treated as domestic violence. Again, a shrug of the shoulders, and a view (with experience) that such things are common in family law cases.

Arguably, our acceptance, the court's acceptance, CAFCASS's acceptance invites the problem to continue, unaddressed.

While understanding allegations need investigating, and that at times the court needs to take a cautious approach, the harm caused to children from a sudden change to the status quo (the cessation of contact) would be mitigated by better case and resource management. Unnecessary delays cause children unnecessary harm. The delays cause harm to both parents (even those who raise false allegations). Also, long cases are arguably more expensive for the public purse, courts and welfare services... but we're used to this situation... shrug.

CAFCASS have previously been censored by the President of the Family Court when cases averaged 40 weeks until a report was prepared. The President should not need to give the CEO of CAFCASS another rollicking. The DfE should be better managing, targeting and improving performance and resourcing.

In the past quarter of a century, we've become used to these failings. Maybe it's time everyone stopped shrugging their shoulders and applied the paramountcy principle to this area too!

The Early, Inquisitorial Approach

In 2012, Mr Justice Ryder (now Lord Justice Ryder) announced that as part of judicial modernisation, the judiciary would take a more inquisitorial approach (see the Fourth Update). I've seen a number of cases in 2013 which were resolved at the first hearing and dispute resolution appointment. I've seen near identical cases take 18 months to resolve. Why the difference?

In the cases resolved without delay, both parties were litigants-in-person, and the judiciary took that recommended inquisitorial approach, questioning both the alleged and the accuser at the first hearing. Cases involved cessation of contact and allegations, but the courts took a firm approach and gave adequate time for both parties to be heard at that first hearing. This wouldn't be achieved in a 15 minute or half hour timetable which is commonplace elsewhere. 

The opinion that litigants-in-person delay proceedings isn't always true. What delays proceedings (aside from poor case management) is insufficient time being allocated to hear evidence at early hearings. Such time, if allocated, needn't place an additional burden on the court, but can and does reduce overall court time when more cases can be resolved on the day by negating the need for further directions hearings and a drawn-out contested/final hearing. 

The courts are using a more inquisitorial approach when parties are litigants-in-person. Arguably, this presents the court with an opportunity for speedier resolution of cases, since the judge will hear oral evidence from the parties from the outset. Where litigants are represented, such an occurrence may not happen until a final/contested hearing (months into proceedings). In early hearings, the advocate acts as a barrier to hearing evidence directly from the client. Hearing and observing the parties is an important part of evidence... so why delay it?

I've little doubt that many litigants wind themselves up as delays cause them to become more stressed. They 'up the stakes', and at times allegations related to historic matters breed, and appear out of thin air during the long pauses in proceedings. 

When the court hears oral evidence at the first instance, directly from the parties, it then has a greater opportunity to make a final order without further delay. This is where the inquisitorial approach can have marked advantages over the adversarial system which remains commonplace in private family law. 

Among the judiciary, there is interest in change. Sir James Munby has now taken over the reins for judicial modernisation following Ryder's appointment as a Lord Justice. The role of the judge as the referee while litigants and their counsel slug it out has been questioned by Lord Judge himself:

'The traditional model of the judge as a passive arbiter, holding the ring between the protagonists, allowing the parties to adduce whatever evidence they wish and however relevant it may be to the ultimate outcome of the case or not, will change.'

We hope that the inquisitorial approach will be consistently applied regardless of whether the parties are represented, and where one or both parties are represented, from the moment the parties first walk into court. This is not a radical idea... it merely takes the preferred approach in public law for a fully inquisitorial system rather than that which exists in private family law... the adversarial fact finding environment... and rolls it out to apply regardless of whether parties are represented. Within that, we would hope for less cross-examination of parties by advocates (at a final hearing), and more instances (ideally universally) where the judge questions the litigants directly (from the outset).

Just imagine an alternative system (which isn't so different from that we're starting to see)...

Statements with evidence are required when the C100 and C7 forms are filed (which should strip at least a month out of court proceedings regardless of whether matters are resolved at the FHDRA). Documents to include a warning that future allegations relating to historic matters will not be accepted unless included within the parents' first statements.

The first hearing and dispute resolution appointment to be held within 21 days of the application being made (and 7 days granted for the respondent's statement), to provide the court with 14 days to assess the evidence on paper.

Litigants to be provided with a paper-based statement template (with a link address where one can be downloaded as an MSWord document). Simple headings included such as:

• Brief History
• Child's Circumstances
• Concerns
• Requests to the Court

From a pre-hearing reading of those statements, a judge allocates sufficient time for the first hearing and dispute resolution appointment.  If CAFCASS involvement is needed, an officer is requested and appointed to the case, to be present at that first hearing. Counsel may accompany their clients and make submissions, but the clients will be directly questioned by the judge at that first hearing, and the responses of the litigants form part of evidence. If a welfare report is required, this should be conducted within four weeks of the FHDRA, and if there needs to be supervised contact to form part of investigations, this to be started within 7 days of the FHDRA.

Radical? I would have thought more radical would be the system we have, where unacceptable delays are commonplace, child welfare is harmed by delay, and unnecessarily drawn-out proceedings put strains on the public purse.

CAFCASS Under the Microscope

Family Law Week this week included two articles on CAFCASS. The first commented on the Interdisciplinary Alliance for Children having published their joint position statement on the delivery of court services to children in family proceedings. The Alliance questions whether the CAFCASS model of service delivery is either the most effective in terms of outcomes for the vulnerable children involved or the most cost effective use of all the available resources both human and financial. he Alliance calls on the Government to act quickly as it considers that matters are now too serious to await the outcome of the forthcoming Family Justice Review. [1]

The second article highlights The Association of Lawyers for Children having written to Anthony Douglas, Chief Executive of Cafcass, to express its deep concerns about Cafcass' apparent intention to attempt to manage children's guardians' caseloads by imposing restrictions on the work that they will be permitted to do between the Case Management Conference and Final Hearing in public law cases. [2]

Pull CAFCASS from private family law proceedings and focus their resources on public family law where there is 'real' concern regarding child welfare.

CAFCASS intervention and investigations in private family law, where there is no risk of significant harm is unwarranted and goes counter to The Review of Child Care Law (Department of Health and Social Security, 1985)) and the white paper, The Law on Child Care and Family Services (Cm 62, 1987), which led up to the Children Act 1989. In that review, it was accepted that “Only where their children are put at unacceptable risk should it be possible compulsorily to intervene. Once such a risk of harm has been shown, however, [the child’s] interests must clearly predominate”. Where there is no risk of significant harm, there should be a presumption of shared care, and no requirement for any CAFCASS investigation or court intervention beyond protecting this Article 8 Human Right. Otherwise, the courts unnecessarily, and arguably illegally, meddle in family life.

When parents come to court due to their being unable to agree arrangements for the children, there should be no CAFCASS involvement unless there are clear concerns that the children are at risk of significant harm. Where such concerns are raised, the matter should be elevated to public law, and a s.47 Core Assessment carried out rather than the light weight section 7 reporting by CAFCASS in private law proceedings. The court's primary function, where there are no such concerns, should be to safeguard the child's and both parents' right to family life, without further meddling.

Parliament's intentions for private family law and residence, as expressed in The House of Commons reference sheet 89/5.13 on the Children Bill (26 June 1989), was that 'In some cases, the order will provide that the child shall live with both parents, even though they do not share the same household. If such an arrangement is practicable, there is no reason to discourage it. More commonly, however, the order will provide for the child to live with both parents, but to spend more time with one than the other...It is a more realistic description of the responsibilities involved in arrangements of this sort to make a residence order covering both parents rather than a residence order for one and a contact order for the other."

The granting of sole residence to one or other parent, and the industry that has grown up around it since 1989 and the inception of the Children Act has come about through undemocratic meddling by judiciary and Cafcass who were unable to let go of the earlier concepts of 'custody and access' which Parliament intended to be abolished by the Children Act.

20 years on, it's time for Parliament's intention to be put into practice, and Cafcass to concentrate on helping children in real need.

End Notes:

1. Interdisciplinary Alliance for Children publishes joint position statement on the delivery of court services to children in family proceedings: Family Law Week

2. ALC writes to Cafcass to express ‘deep concerns’: Family Law Week