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.

Heed Mostyn's Warning To Litigants-in-Person

There's been much discussion on Sir Nicholas Mostyn's recent warning in the judgment Bakir v Downe [2014] EWHC 3318 (Fam) to litigants-in-person, that the onus is on them to understand court rules, and it's not the role of judiciary to give legal advice.

Some felt it an arrogant thing for Mostyn to do, and in the way he did it. "Why couldn't his clerk simply explain court procedure rather than the litigant-in-person being brought back to court, and the judgment made public to humiliate him?" In fairness, it seems Mostyn's clerk had repeatedly answered emails from the litigant, and Mostyn decided enough was enough when the litigant became 'shirty'. He also makes a more subtle point that litigants should heed. Tread warily!

Mostyn's warning is important, and to my mind, necessary and unsurprising. A friend, in discussion made the point "when in a pen with a bull, if you poke it with a stick, expect to get trampled." After repeatedly breaking court procedure, and being in a position to seek legal advice but choosing not to, the litigant then poked Mostyn by asking his clerk for a copy of the judicial complaints procedure. My friend's view was it was a "dumbassed thing to do" (colourful language, but he is American, so I forgive him).

If the court order was wrong, the litigant might have applied for an amendment under the slip rule. He might have sought a further hearing for amendment. He might have raised an appeal. Repeatedly emailing the judge... no.

Is the judgment arrogant? I don't think so. Mostyn is no fool, nor unable to look at realities for the people who walk into his court. He's outspoken. He knows he has this tendency. Mostyn, when he first became a judge had a piece of paper in front of him saying "shut up" because he has a natural tendency (from years of being perhaps the UK's top divorce lawyer) of speaking his mind. On this occasion, he's turned that piece of paper around and placed it under the litigant's nose.

Legal Aid Cuts and Alternatives
Mostyn also points out that the courts are having to deal with the fallout of the Government's legal aid cuts, with fewer resources than they had before. I don't doubt his clerk's frustration at this, and believe that sense of irritation is shared across the board. It's the arrogance of Government, the lack of thought for a safety net, the appallingly inadequate thought given to how litigants can be helped in absence of legal advice where blame needs to land. Not on this judge, or his clerk. Myself, I walked out of a meeting at Westminster on LAPSO, legal aid cuts, and there being no solution other than "something needs to be done by the next Parliament" and a belief by politicians that the horse was still in the stable when they smashed the stable door months before. 45,000 cases had legal aid before... and now don't. The services which were struggling before legal aid was withdrawn have had their funding, staffing and resources cut. Little wonder there are quite significant advice vacuums and the courts can't fill this void no matter how much people wish they would.

I think it foolish to take a view that this judgment doesn't recognise the difficulties faced by litigants-in-person. I take from the judgment that Mostyn understands the hardship enforced on litigants through the Government's withdrawal of legal aid. I don't doubt matters would have been handled differently had the litigant not had the ability to afford legal advice. From the judgment, it appears clear that on a number of occasions, Mostyn's clerk had explained matters, but Mostyn decided enough was enough.

It was and is unrealistic to expect the judiciary and their support staff to carry the weight of giving legal advice due to cuts, just as it is unrealistic to expect the third sector to adequately fill the void when their funding was also cut to the bone. Lord McNally actually laughed at these cuts in a LAPSO meeting I was at. Doing more, with fewer resources, is a pathetically unrealistic goal. A car crash was bound to happen, but the drunk driver behind the wheel was the Government. Drunk? Stoned off their box would be more accurate, and ne'er having had a driving lesson. Don't blame the judge for frustration at the traffic delay, nor pointing out the problems, and that sadly litigants now have to cope with understanding what at times is an overwhelming number of rules, procedures and process.

Mostyn's judgment makes several points:

• The judiciary don't have the resources or time to act as an advice bureau... true;
• If you're in a position to seek legal advice, do;
• If you're not in a position to pay for legal advice, the onus is on you to research what you need to do, and how to go about it. A large part of what the Custody Minefield does is provide you with information to help (there's still more information we're working on, we offer the most detailed guides out there in a combined format, aimed at helping litigants-in-person, but our resources are limited too). We foresaw the Government was going to fail spectacularly in providing a safety net following legal aid cuts, and have done more to fill this gap than they did, with all their resources;
• The difficulties experienced today by litigants-in-person now is due to the Government enacting changes with no preparation or consideration as to the practical difficulties it causes;
• If you want the court to do something, you need to make a formal application according to court rules;
• Don't treat the courts like a call centre, nor treat judges and their clerks like call centre staff;
• Not all judges will be as patient or understanding as Mostyn;
• Don't poke judges with a stick unless you're very, very, very sure of what you're doing, and that the judge is plainly wrong (and even then, take advice and think twice about whether the battle is worth it);
• If you don't understand the rules (and even if you do), deference is a wise path to tread. Those who don't feel why, in this modern world, they should be respectful to what is 'just another human being' tend to get quite bruised.

The judgment is repeated below.

More training needed for HMCTS on Lay Advice

Two recent incidents highlight the lack of knowledge among both magistrates' clerks and HMCTS staff regarding litigants in person, permissions required for lay advice and the role of the McKenzie Friend.

The first being a litigant in person told they cannot seek lay advice about matters relating to proceedings without the permission of the court. In this matter, the clerk confused permission for a McKenzie Friend to accompany a litigant into court (which does require the court's permission) with a litigant seeking confidential advice (which does NOT require the court's permission).

Family Procedure Rule 12.75 covers the matter of who advice might be sought from, and the circumstances. Common sense should dictate this though. Otherwise, how would the Citizen's Advice Bureau exist, let alone the other organisations which provide lay advice.

The second matter being a litigant in person having been told by court staff to have their McKenzie Friend contact solicitors for the other side over a recent application. The McKenzie Friend is prohibited from doing this and MAY NOT act as the litigant's agent or manage their case outside of court. The Law Society practice note on litigants in person expressly states that if a solicitor receives correspondence from a McKenzie Friend, they should reply back to the litigant in person (6.1). The President's Practice Guidance on McKenzie Friends and the Legal Services Act 2007 also apply.

flApp v.2 - Family Law Support for 2014

In January 2014 we launch our new Family Law App... flApp v.2

2006 saw our first venture into family law information for separating parents, and The Custody Minefield book reached no.2 on Amazon's Divorce Chart. A reviewer in the Magistrates Magazine said it would 'save parents a fortune in legal fees'. The Divisional Chair of the British Association for Counselling and Psychotherapy described it as a 'gem of information'.

The law isn't static, and print media soon becomes out-of-date. With legal aid being abolished and charity funding being cut, litigants the need for detailed support information has become even greater. I often am asked 'can you recommend a good family law book?' Not if it was written more than a year ago. The Low Commission (tasked with investigating support tools to plug the hole left by legal aid cuts) calls for action by 'the next Government'. Parents and their children need help now! Not after the next election.

In 2012, we launched our first web based application. This grew into a behemoth of information, as more and more content was added covering an ever wider array of situations and circumstances. We feared this was becoming overwhelming for the user.

When building this new version, we faced three dilemmas.

1. We wanted more content, not less. Something easily accessible, but not dumbed down. The volume of content needed thoughtful structuring,  in a more user friendly format.

2. We felt the volume of information in our first app was too overwhelming for some litigants, and especially when they are hindered by stress... but that depth of information is necessary to ensure the litigant can be properly armed, to achieve an 'equality in arms' (or as close as we could get it).

3. We were aware that a number of charities have support staff who use our guides, as do some McKenzie Friends. Specific guides would need to be quickly accessed while an adviser is on the phone, or with a parent or grandparent, face-to-face. Different users would need to access information in different ways.

In short, our goal was to provide more information, in a more accessible format, which was not overwhelming for the user, and would be of benefit to both the novice litigant and experienced adviser on family law.

This has been no easy feat. The new app answers many hundreds of questions and we estimate has 1,000,000 words of content (we stopped counting after 850,000).

Accessibility - Design

Accessibility is critical for any application. The format will need to work across all popular phones, tablet, e-reader, and desktop platforms. The design needs to cater for touch screen or keyboard usage. It does!

Accessibility - Structure

Rather than a long list of guides, we've opted for content specific, menu driven access, which breaks information into 'digestible' chunks, and where the user is lead from guide to guide.

The litigant-in-person (new to family law) chooses the first button 'Resolving Disputes', whereupon they're taken to a stage by stage, guide to the legal process.

Step 1: Pre-Litigation (guides on mediation, handling stress, helping children cope etc).

Step 2: Applying to Court (everything from orders explained, to the application process, forms etc)

Step 3: The first hearing (the FHDRA explained, position statements, the role of CAFCASS, confidentiality, courts and judges, etc)

Step 4: Directions and interim hearings (bundles, statements, collating evidence, investigations etc)

Step 5: Contested/Final hearings (preparation, bundles, scott schedules, skeleton arguments, submissions etc).

Simple guides on most other sites simply fail to cover more complex situations, and don't provide information which the litigant needs. What does a 'statement' look like? How should it be structured? What goes into a skeleton argument? What on earth is a Scott Schedule or the Witness Template? Who can I ask for advice (a question some court clerks appear confused on, when telling litigants they can't speak to lay advisers without the court's consent... you can!)?

So we go into detail... 

Taking Leave to Remove as an example (where one parent seeks to take a child to live abroad and the other parent opposes the move), our guides provide information as to what the court considers important, steps you may take, domestic as well as international legislation, and case law.

If your children are missing, you come home and the house is empty, if your children are at risk of removal abroad, suffering abuse or neglect, are being alienated from you or it's disputed whether you're their parent... you'll find practical information to assist you, referenced to the latest court judgments, and all commonly asked questions are answered.

Accessibility - Choices

If you know what you want, and would sooner not search through menus, we're introducing Oscar. Using page specific meta-tags, Oscar, our search agent, hunts for specific content.

Oscar searches through guides, menus and case law. Regarding case law searches, you can search using the area of law (e.g. contact disputes, parental alienation, leave to remove, internal relocation, shared residence etc...). If you remember the year and the judge who heard the case, Oscar can bring up cases heard by a specific judge or in a given year. If you know the neutral citation number, that's fine too (but how many of us do!). In short, Oscar is your dedicated family law librarian and can be accessed as a 'pop up' on any page with the press of a button.

For the new litigant, we've added a legal dictionary, which again can be accessed from any page, and being a 'pop up' screen, you don't have to leave the page you're on to decipher legal language (and then lose your place)!

For telephone support staff who need instant access to information, we've added a full content list, which again can be pulled up as a popup, and content accessed in this way opens up as a new window (allowing multiple windows to be open at once). 

Version 2, launching in January 2014, will have case law in both html (on screen) and a downloadable alternative (in a pdf format) should litigants want to provide the court with a skeleton argument supported by a reading list and hard copy case law. Where cited in guides as an indication of matters the court considers in specific circumstances, hyperlinks take the user straight to the judgment.

Version 3 will launch in April 2014, in anticipation of changes to the family courts. The modular design structure allows us to update content... fast ... and we'll have some new surprises for you!