A system designed for litigants in person by John Bolch

Children|Family Law|March 11th 2014

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’. As I mentioned in this post, 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.

Photo by Alwyn Ladell via Flickr under a Creative Commons licence 

 

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(7)

  1. Andrew says:

    And where only one party is in person and that is the one who would in the ordinary course be required to provide the bundle?

    Let me guess, the other party will be expected to do it and stand the cost. It’s not fair and it’s not right. The public purse should meet the cost.

  2. Tristan says:

    What I want to know is how the courts propose to handle the issue of false allegations. This ought to be given as much prominence as the C1A form which encourages recalcitrant mothers to make bogus accusations of domestic violence.

  3. Caz says:

    @ Tristan
    Whilst I understand these court cases are based on possibilities and probabilities, accussations of domestic violence should be proven on evidence, not word of mouth, backed up by a few buddies????????
    I would also like to see a difference, whereby the LA are made to alternate their legal representation, instead of having a secretive local solicitor in charge for years, who in turn represents the LA, the child, and can employ a solicitor from his own firm to represent the child, who in turn chooses the guardian-ad-litum. Whilst the parents can choose their own representation, most area solicitors are too afraid to fight against the LA and their legal, to do so can bankrupt their company, and reputation

  4. Stitchedup says:

    “Whilst I understand these court cases are based on possibilities and probabilities, accussations of domestic violence should be proven on evidence, not word of mouth, backed up by a few buddies????????”

    Agreed, but not the case in family/civil courts. Indeed, the concept of having to prove domestic abuse/violence is not on the political/legal agenda. It’ all about how the alleged victim perceives things, it’s not even one word against the other.

  5. Caz says:

    Children and parentage is all about commitment, any parent that can produce to a court, commitment ie, support, payment, interest with schooling, development, time and availability for access, all this proof, without the manipulation of whom has employed the best legal, can now be presented to the presiding judge, it will be very hard then for a judges decision to go against any parent wrongly accussed

  6. vob re says:

    Tristan you have got it in one ! The tide appears now to be turning
    the LA have dismissed 181 staff in 2013 deemed as a risk to children. Freedom of information
    Out of these 181 how many were in positions advocating this that and the other, destroying family life; lets hope this is the beginning of getting their own house in order !

  7. vob re says:

    Sorry Caz Got it in one !

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