A system designed for litigants in person by John Bolch

As reported here yesterday, new research suggests that almost half of all court cases involving children now feature unrepresented litigants in person. The courts system is having to adapt to this new reality, and some of the adaptations became clearer yesterday, when the final report to the President of the Family Division of the Private Law Working Group (‘PLWG’) was published.

The PLWG has been working on the new ‘Child Arrangements Programme’, or ‘CAP’. The CAP is a scheme that sets out ‘best practice’ in relation to how the courts should deal with disputes between parents over the arrangements for their children, and will replace the old ‘Private Law Programme’.

In November the PLWG put the draft CAP out for consultation by the judiciary and family justice professionals. Responses to the consultation have now been considered by the PLWG, and in their final report they set out their revisions to the CAP, based upon those responses.

The CAP will have to be followed by litigants in person when dealing with disputes relating to the arrangements for their children. Accordingly, many of the revisions are designed with litigants in person in mind.

Firstly, and perhaps most importantly, the wording of the CAP has been simplified with the intention of making it more accessible for litigants in person. I haven’t yet seen the final draft of the CAP so I can’t comment upon how successful this has been, but obviously a scheme that is not readily understandable could be worse than no scheme at all.

In a similar vein, a glossary has been added to the CAP. Unfortunately, it will not be possible under the present system to avoid legal terms and jargon entirely, so the glossary has been added to explain them.

Some responses to the consultation suggested that the CAP should incorporate a fixed timetable for the child, measured in weeks, as with the 26 week timetable for the completion of care proceedings. However, the PLWG continues to reject the idea. One of the reasons for this is that they felt that the pace of litigation may well be affected by the active co-operation of litigants in person, making it difficult to keep to a strict timetable.

The PLWG recommends the use of fact-sheets explaining mediation in deliberately short and straightforward documents, written in plain language. They also recommend that these documents should be available in every court. Similarly, internet-based information for litigants in person will be improved, and further guides for litigants in person are to be circulated in time for the launch of the new Family Court next month.

Even the court procedure for litigants in person is to differ from that applicable to represented parties. For example, where a case goes to a final hearing the court requires a bundle of documents to be prepared for the use of the court at that hearing. Normally, the bundle will be prepared by solicitors. However, where both parties are litigants in person, the Courts Service has agreed, where directed by the court, to prepare a ‘litigant in person bundle’ for use by the court.

Also, although not specifically stated to be for the benefit of litigants in person, the court will now serve applications concerning children upon the respondent, instead of requiring the applicant to serve them, as at present. This will simplify the procedure for issuing applications, which will certainly help litigants in person.

Finally, McKenzie Friends will obviously be far more commonly involved in these proceedings. The CAP therefore now specifically states that they may attend court hearings with litigants in person, in accordance with the relevant practice guidance.

Representing themselves in court is never going to be easy for litigants in person. Hopefully, however, all of the above will make it just a little less daunting.