Now, before I begin this post proper I should emphasise that nothing I am about to say is meant to be derogatory in any way towards litigants in person or McKenzie friends. Most litigants in person find themselves in that position entirely involuntarily, due to their inability to afford legal representation and the lack of legal aid. Despite the obvious disadvantage of not having a qualified lawyer to represent them, many do an excellent job of representing themselves. Likewise, many McKenzie friends provide a great service, as I’ve said here previously.
However, the fact of the matter is that litigants in person can have an entirely different outlook to a trained lawyer, which can lead them to take a course of action that no lawyer would ever contemplate. They believe that that course of action will help their case, when it is actually more likely to have entirely the opposite effect. I saw this myself on many occasions when I was practising, and I’m sure most family lawyers have witnessed it. The problem is particularly prevalent in proceedings concerning arrangements for children, where emotions run especially high.
And so it was in the recently published case H v Dent & Others, which concerned an unrepresented father’s application for contact with his daughter (the father did have the assistance of two McKenzie friends). I’m not going to go into the details of the case, but the basic facts were that the father thought that it would be a good idea to secretly record his visit to Cafcass’ offices and the discussions outside court between the Cafcass officer assigned to the case and the mother’s solicitor. Making surreptitious recordings or videos seems to be a common theme amongst litigants in person, as I can attest from cases that I have dealt with myself – I’m not sure whether this comes from watching too much television (no disrespect intended), or from the erroneous belief that recorded evidence trumps other types of evidence.
The father then used the contents of the recordings as evidence in support of applications to have the Cafcass officer, the mother’s solicitor and (originally, but not pursued), the Cafcass officer’s supervisor, committed to prison for contempt of court. The ‘charges’ against them were many (as one can imagine from a litigant in person), comprising a “wide-ranging, attack upon the entire course of their dealings with this case”. In particular, though, he alleged that they had breached orders made by the court.
Remarkably, the father’s applications were given a great deal of court time, including a three day hearing before a High Court judge, Mrs Justice Roberts. Less surprisingly, she found that there was no merit whatsoever in the applications, which were procedurally defective and which she considered to be an abuse of the court process. The applications were therefore struck out.
But that was not the end of the bad news for the father. In a second judgment Mrs Justice Roberts ordered him to pay the mother’s solicitor’s costs, which she had incurred personally, and which amounted to nearly £17,000 (the exact amount that the father has to pay is to be assessed by the court, if not agreed).
So, the father’s actions turned out to be pure folly, as I’m sure any lawyer would have advised him before he embarked upon them. I don’t blame him entirely – after all, as Mrs Justice Roberts said, he was only trying to restore his relationship with a much loved child. However, those actions have helped nobody, and have taken up a huge amount of precious court time.
Unfortunately, scenarios of this type are surely being repeated on a regular basis in courts up and down the country. For want of proper legal assistance, litigants are damaging their cases, causing themselves unnecessary delay, stress and expense. Children are being adversely affected by that delay and by the worsening of relations between their parents. Lawyers and others involved in the family justice system are being put to trouble and stress (having a committal application hanging over one’s head, even one clearly with no merit, must be no laughing matter). And finally, the courts system is being put to unnecessary expense and use of resources that are desperately needed by more deserving matters (such as the resolution of the actual contact dispute in this case).