Cases of sufficient complexity to reach court need the input of lawyers, a High Court judge has declared.
Giving judgement in the case of Re C, a complex child contact dispute, Lord Justice Ryder said there was often a “real opportunity for dispute resolution” in the early stages of “less fraught” cases, but in cases “not immediately susceptible of conciliation or out of court mediation, it will require a lawyer’s analysis”.
In Re C, both the mother and father were litigants in person, without legal representation.
Lord Justice Ryder said: “This is after all a court of law. In the absence of lawyers, the judge has to [carry out the legal analysis] and to do that without assistance and sometimes with quite vocal hindrance. That requires more time than in a circumstance where the lawyers can be required to apply the rules and practice directions, produce the witness statements, summaries, analyses and schedules, obtain instructions and protect their lay client’s interests. Where a court is faced with litigants in person the judge has to do all that while maintaining both the reality and perception of fairness and due process.”
The case concerned a couple who separated in January last year, after a ten year relationship. They had one son, born in April 2008. The mother began a new relationship, but the father, a former soldier, struggled, both emotionally and financially. He applied for direct contact with his son but this was denied following a Cafcass report which alleged domestic violence.
However, the court did not hold a fact-finding hearing to establish the truth of the claims. Instead the father was allowed only indirect contact, via letters, cards and “small gifts”.
The father appealed and Lord Justice Ryder, sitting with Lady Justice Macur and Lord Justice Sullivan, ruled in his favour. The contact order specifying indirect contact only was set aside and the case sent back to the family courts for a rehearing.