The House of Commons’ justice committee, chaired by Sir Alan Beith MP, predicts an increasing number of litigants in person by reason of the government’s curtailment of legal aid. We are told courts must make ‘adjustments’ to cope with this influx ‘in what are often emotionally charged cases’.
Wisely, the parliamentarians offer no suggestions as to the nature of the adjustments. It is possible some of them are sufficiently well informed to recognise that, in the context of the county court, this is just wishful thinking. To a far greater extent - and for far longer - than any other judges, district judges in the county courts have been ‘adjusting’ the management and conduct of cases to accommodate litigants in person.
Nobody has more experience in dealing with them than we do and, if we are nearing the limits of our capacity and inventiveness, there is no hope that the county court can survive the withdrawal of publicly funded legal assistance without significant increases in delay for other court users. If you agree that justice delayed is often justice denied, the county court and its users face a bleak future.
This article looks at the likely impact of the proposed legal aid ‘reforms’ on family litigation in the county courts. It represents the personal views of the writer, which may or may not be shared by his colleagues.
The government has its agenda, the Ministry of Justice has its statistics and the senior judiciary have their concerns. None of them have the everyday working knowledge of the county courts enjoyed by district judges. Our national committee is, of course, consulted on change and responds promptly, with vigour. But any respect attributed to its expert advice by decision-makers is not reflected in outcomes.
This, then, is the voice of a foot-soldier in ‘the poor bloody infantry’, going over the top to predict chaos for HMCTS, the county court judiciary and, most importantly, court users and their children.
The commentary on the legal aid cuts has had the usual talking heads pirouetting about the usual platitudes. None of them face up to the fact that the virtual elimination of publicly funded professionals from family cases in the county court threatens its collapse under the weight of misplaced expectations.
To explain why requires political correctness to lie down in a darkened room for a few paragraphs, for it would seem this government and the last have proceeded on the assumption that members of the public will be able adequately to deal with private-law children’s cases and divorce-related financial applications on their own. In other words, that professional assistance and representation in such cases is unnecessary. Unhappily, this is not often the case.
Around 85% or more of family cases are dealt with in the county courts, including the Principal Registry. There is already a high proportion of cases, more than half where I sit, in which one or both parties are litigants in person. In the main, they are well meaning, but lack crucial skills.
Many do not cope well with either the written or the spoken word. Many are unable properly to organise their paperwork.
Numeracy skills are not commonplace and many are financially illiterate. They do not understand credit or debt, save to the extent that they have taken it and are in it. This hampers their understanding of applications involving money and how they might best be resolved.
In addition to these educational shortcomings, they tend to lack any psychological empathy with their opponent and are unable to see the other’s point of view. These cases arise from failed relationships, so litigants are often assailed by strong emotions such as anger, jealousy, hatred and love for a child in the ‘enemy’ camp. Add to this an understandable fear of being involved in court proceedings, no real concept of the legal process and a subjective certainty in the justice of one’s own case, and it is plain the opportunity for negotiated settlement is greatly reduced when even one party is unrepresented, let alone both.
These factors tend to undermine the ‘classic’ financial order procedure where FDA is followed by FDR and a final hearing is often unnecessary. That is no doubt why public funding is to be withdrawn for such hearings. However, the ‘classic’ procedure is only effective when both parties have complied with the requirements of the rules in preparing for the FDA; have dealt fully and completely with questionnaires and related additional disclosure; and are able to cope with a meeting for discussion and negotiation.
Full and complete compliance with the rules is rare in any case, but litigants in person really struggle to get it right. Their Forms E are often incomplete, their disclosure disorganised and their appreciation of the relevant issues partial at best. Neither the judge nor the other side’s representative can do it for them, although many will try to help.
There is a limit to how often an explanation can be given or the hearing adjourned in the search for compliance, and penal notices and their consequences are clearly not a proportionate response in most cases of default.
Once at FDR stage, how many litigants in person are able to negotiate and discuss the division of their matrimonial assets openly and constructively with even the most cuddly of counsel? How can a busy judge conduct an FDR hearing with two individuals who continually produce new documents from plastic bags, who will not listen to each other and who are unable, emotionally, to compromise?
The fact is, FDA and FDR hearings, where the latter take place, take twice as long when they involve a litigant in person.
Of course, district judges are used to assisting litigants in person to put their cases and, when neither party is represented, it often falls to the judge to elicit the relevant documents and facts by questioning the parties and extracting the documents from the (usually disorganised, unnumbered and unindexed) bundles produced. The process is inquisitorial and takes time. The final orders are important and need to be as ‘right’ as the evidence and circumstances allow.
No doubt you think I exaggerate. I can only assure you that, while a very few litigants in person are utterly hopeless, only an equally small proportion are fully up to the tasks imposed upon them by the law and the rules of procedure. The likely huge increase in the numbers of these reluctant entrants into the court lists promises delay and disruption of other court business.
Other factors, tending to the same result, arise in private-law children’s cases. While it may be right to see these as the poor relations of care cases, it would be wholly wrong to think of them as being invariably simple and easily resolved.
It has rightly been said that intransigent contact cases are a ‘judicial nightmare’. Further, in my court at least, there is a growing number of private cases of considerable complexity and cases in which a children’s guardian is needed. During the gestation of this article, I have heard a case in which: both sets of grandparents wanted either residence or contact orders; both parents have learning difficulties, with one a litigant in person and the other represented by solicitors instructed by the Official Solicitor; and where the child is a party.
All representation is publicly funded. How, one might ask, would the grandparents cope without? How much of a burden can fairly be loaded onto the child’s solicitor?
Litigants in person in these cases have all the difficulties referred to above with the added emotional pressure arising from their child being the centre of the storm. It is hard to be phlegmatic when the mother of your child wants to take him abroad to live, or to reduce your contact, or opposes your getting to know the child again after time apart.
Most of my readers will be lawyers. Would you want to be a litigant in person in such a case? Would you have ultimate and complete trust in the judge to make the ‘right’ order?
The court’s power to appoint a children’s guardian is set out in rule 16 of the Family Procedure Rules 2010. The practice direction 16A makes it clear, perhaps for the benefit of Cafcass, that the decision to make a child a party is exclusively that of the court and PD16A.7.2 sets out some of the circumstances that may justify such an order.
Those appearing at 7.2(b) and (c) are tailor-made to assist judges in resolving disputes between litigants in person who have no professional advice to help them build bridges with the other parent or extricate themselves from an entrenched position. It is certain the increase in the number of cases in which both parents are unrepresented will result in an increase in the number of guardian appointments.
This increase may be exponential and well beyond the capacity of Cafcass, which is already a largely spent force in my area. So obvious is this, that it must have been factored in. Representation for the child must be cheaper than representation of the parents. At the risk of repetition, how much of the burden of sorting out these cases can be placed on the child’s solicitor?
Perhaps the only certainties are that there will be no more courts and no additional judges. Family cases will take up more, perhaps much more, of a finite amount of judicial time. This will result in longer delays and increase the difficulties for other litigants in person whose passage through the court will be further extenuated.
It is one of the fundamental assumptions of the Children Act that delay in resolving the dispute is prejudicial to the welfare of the child concerned (section 1(2)). Other court users will find their cases take longer to come on. It will not be possible to meet already over-ambitious targets for the trial of small and fast claims. While this may encourage the insurance industry to sort out credit-hire claims through some other agency, it will discourage ordinary citizens from coming to court and inhibit access to justice.
In recent years, the county court has tried – and, with the hard work and goodwill of its staff and judges – made a reasonable pretence of getting a quart into a pint pot. This time the overflow will be all too apparent.
Peter Glover has been district judge at Dartford County Court since 1995. He is a former member of the national committee of HM Association of District Judges