Helping litigants in person by John Bolch

Cohabitation|Family Law|Stowe Family Law|October 24th 2013

Whilst taking one of my regular looks at the Judiciary of England and Wales website yesterday, I noticed that they have published a guide to court proceedings for those without legal representation. Cunningly titled A Handbook for Litigants in Person, the guide has been written by six judges and gives an overview of the process involved in civil court proceedings. Apart from the PDF available to download from the website, a limited number of printed copies of the handbook have been distributed to courts and Law Centres.

The Master of the Rolls Lord Dyson explains the need for the handbook in its foreword. He says:

“Access to justice is a right not a privilege. That right has in the vast majority of cases traditionally been exercised by members of the public through the services of a lawyer. Over the last ten years there has however been an increase in the number of individuals who have, for various reasons, pursued and defended claims on their own behalf: they have been and are litigants in person (or self-represented litigants). It is anticipated that in the years to come the number of litigants in person will increase and perhaps will do so sharply.”

One of the primary reasons, of course, for the increase in litigants in person is the cutting back of legal aid, which was virtually abolished for private law family proceedings (i.e. not involving a local authority) in April.

Lord Dyson goes on:

“In an environment where more individuals litigate on their own behalf it is incumbent on the judiciary, amongst others, to do what it can to help them navigate the civil justice system as effectively as they can. To that end this handbook … has been prepared…”

Now, I should emphasise that the handbook only covers civil claims. It does not cover family claims, although much of its content would also be helpful for those involved in family proceedings. Further, certain ‘family proceedings’, such as cohabitants’ property claims under the Trusts of Land and Appointment of Trustees Act 1996, are actually classified as civil proceedings and are therefore covered by the handbook.

However, whether the handbook is useful to you or not, it is an interesting development that the judiciary should go to the trouble of preparing it, when up until now most ‘official’ help for litigants in person consisted of nothing more substantial than a few leaflets available at court and online. I suppose I should say that the judiciary do, of course, have a vested interest in providing information to litigants in person – after all, they are the ones that have to spend much of their time explaining procedures to them in court.

Whether there is a similar handbook for litigants in person involved in family proceedings ‘in the pipeline’ I do not know, but certainly it would be most welcome. Preparing such a handbook and keeping it up to date would, however, be a substantial task.

There is, in fact, some help for those involved in family proceedings already available on the Judiciary website. They are developing a Family Court Guide. Although nothing like as ambitious or helpful as the handbook, the guide will provide links to legislation, court rules, documents, useful websites and other guidance. At present, the guide only covers public law proceedings (i.e. involving a local authority), but a section on private law proceedings is also underway.

There are, of course, many other sources of help available for litigants in person, including Citizens Advice, other websites such as GOV.UK, books, blogs and forums. And I couldn’t possibly end this post without mentioning Marilyn Stowe’s excellent source of advice Divorce and Splitting Up.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

Comments(10)

  1. Tulsa Divorce Lawyer Matt Ingham says:

    The publication of this guide is a good mive with regard to keeping the legal system ‘fair’ because ut better educates pro se litigants about how to represent themselves. With regard to preserving the integrity if tge profession, the publucation is a bad move because now every Joe Schmoe in the country us going to think he is qualified to represent himself.

  2. Lucy Reed says:

    There is already a book entitled “A Handbook for Litigants in Person”. I wrote it. It’s full title is “Family Courts Without a Lawyer – A handbook for litigants in person” and as you might expect it covers family law. It is due to be republished in April 2014 to keep up to date with various changes in family law and procedure.

  3. Stephanie Bamberger says:

    The Administrative Office of the Courts in California estimates that upwards of 75% of our family law litigants are “pro per” or representing themselves. This has not changed much in my 13 years of practice. Fortunately, we have some resources available to help pro per litigants – each county is mandated to have a Facilitator’s office in the court to assist unrepresented litigants with their forms. I have to say that the website for the Sacramento Superior Court is probably one of the best in terms of making information available in clear, layperson English for those who cannot afford counsel.

  4. J says:

    The handbook is terribly self serving and like most handbooks of this type it lurches like a Haynes car manual from an idiots ‘this is a spanner’ to ‘simply remove the engine’. The problem here is I bet the judges didn’t consult a single litigant in person as to what advice they need. Lets be clear law isn’t rocket science however there is a range of particular problems with the judiciary and lawyers generally. These are:
    1) They believe everything they read and think that because something is written down it must be true.
    2) Truth has nothing to do with law or outcomes
    3) Judges favour represented clients, because they know they are not going to get accused of lying or other misconduct.
    4) Judges are not judges because they are wise or clever they just were a lawyer for a period of time with friends. This nepotism breeds incompetence. There is in effect no measure of the quality of a lawyer or judge, the assumption that the longer they practice the better they are is wholly false. It is well established that up to 60% of knowledge we know as a ‘fact’ or ‘true’ today will turn out to be entirely false in around 8 years. After 20 years of of practice little they understood when they qualified would actually be true so this puts a reliance on the judge actually paying acute attention. A bit like reading a letter you read the first and last two lines retention of knowledge is similar.
    5) Judges and lawyers need to get over their animosity to scrutiny, for example a litigant in person cannot complain to anyone other than Resolution for the behaviour of the othersides lawyer. Complaints of ethics and other matters are not responded to by the Solicitor Regulation Authority or Law Society.
    In particular the family law courts lack credibility because of the behaviour and inconsistency of judges rather than Litigants, whether in personor otherwise, in my case the judge criticised me for making a contact application claiming I had a choice to do it, idiotic not least because how else am I supposed to force contact without one with an implacably hostile ex?
    6) Judges are not a representative demographic of the public or litigants at large, so unlike a criminal matter you are actually being judged by someone with a different ethical, moral, lifestyle, income status. Fair?
    7) Organisations like Resolution are just a marketing body for lawyers with little apparent scrutiny for the lawyers on their panel. They do not support shared parenting on the basis it might not be ‘practical’ so deem legislation to support this as wrong. Why? because not having a presumption of contact means they earn more money as it creates a dispute.

    This last point is crucial because it is the key issue, everyone bar the parents has a financial incentive to keep the family court wheels oiled. what really has to happen in private law matters is the financial incentive needs to be detached from the process. The easiest way to do this is make a presumption of shared parenting so the only arguments become proportion awards to each parent and a penalty for non compliance. if the penalty for denial of access to a parent was the same as parental child abduction I wonder how many cases would actually proceed to court. I suspect it would only be the ones where the denial had merit. It is the same concept as in the wider Civil Court that if you pursue a meritless case and lose financial penalty follows in the form of costs. The benefits to agencies such as CAFCASS and CSA would be immense as it would remove arguments and prevent escalations in cases.

  5. Andrew says:

    Marilyn: offer a podium and the Js of this world will get on it . . .

    • Marilyn Stowe says:

      Dear Andrew
      I don’t think he was referring to my book. At least I sincerely hope not. My book isn’t a handbook for litigants in person.
      Regards
      Marilyn

  6. Andrew says:

    No, I think he was talking about his case.

  7. vob re says:

    The system is stacked against families fighting for ‘Kinship Care’.
    This is where the injustice arises , children are inhumanely forced into adoption by Local authorities, going forth with the cheapest option for them, not the best option for the child.
    To be a ‘Litigant in person’ will be fraught with difficulties, research, opponents acting as as they are
    somehow superior ‘Human Beings ‘.
    Most ‘Litigants in Person’ will need this expert help by selling the family silver!
    What about those poor families who have no
    ‘ Family Silver’? and inhumane ‘Forced adoption’ continues on.
    Legal Aid in these circumstances should be extended
    to the wider family to stop these atrocities.

    • Adrian B says:

      Totally agree. The pace of change is too slow. It takes special people such as Marilyn to lead from the front and to be listened to by the Judiciary.

      The lack of LA in family matters is also causing false accusations of violence so LA is granted. Everybody is losing. And eventually the child looses in the end! Oh, forgot, the lawyers win!!

      This is why I retired as a solicitor and closed my Practice. I now help my clients in a much more personal way as a Professional McKenzie Friend. There are more of us around than ever as solicitors want to “do good” – not to “do fees”!!

  8. J says:

    Andrew
    I wasn’t talking about Marilyn’s book although Marilyn still hasn’t answered some detailed questions I posed her in June.

    I stand by my comments as I have little evidence to prove otherwise, I have never seen a lawyer argue against them either . As the position of the legal profession is mostly in defensible.

    J

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