As officers of the court we have a duty to help litigants in person.
I started producing materials for litigants in person (LiPs) involved in family cases in 2009, before LASPO was a twinkle in the ministerial eye. Then most cases involving a LiP also involved at least one lawyer. LiPs were generally perceived as an occasional irritant; a barrier to the smooth operation of the legal process. Well, now we’re in the minority, at least in private law children and ‘small money’ financial remedy work.
Ironically, because LASPO has levelled matters in low-income families by removing legal aid from both parents (unless one falls within the domestic violence or other limited categories), the family lawyer directly encounters LIPs infrequently even now. But their presence and effect is pervasive: in court listing delays, in the inefficient operation of block lists, in the weariness of the judiciary, and in the ever-increasing reliance of judges on counsel or solicitor-advocates to pick up the slack whenever they are involved, in the publication of the Child Arrangements Programme and accompanying templates.
In March, I spent a day at Bristol Civil Justice Centre with a team of volunteers filming a series of basic guidance videos for LiPs. My friend Dave played the role of the LiP. He is not a lawyer. Although there is no dialogue, we asked him to role-play, asking the judge for contact with his (fictional) son so we could use the footage and add a voiceover.
He told me that simply being in the courtroom was intimidating. I believe him. I have been a LiP myself (long story, but not family proceedings) and even as a practising lawyer I was a wreck. There was a profound sense of being under attack as a person.
There is something about speaking up that is infinitely harder when it is your life you are defending. In the family court, privacy is violated, choices made during moments of pain and sadness are scrutinised coldly, and one’s personality is unpicked and criticised.
LiPs who end up in the family court have lost one or more of: their partner; children; home; and financial stability. What they have not yet lost, they fear losing. Is it any wonder they are sometimes less than calm, clear, methodical or polite?
LiPs do not care what we call the court. They are not likely to have read and digested the 37 parts of the Family Procedure Rules and the 74 practice directions. They will not have read and digested any one of the president’s ‘views’ or his guidance notes. They will not have access to any consolidated version of the Children Act 1989. Apart from what they can find on the internet (good, bad and ugly), most arrive at court with no real frame of reference, language or tools to be able to successfully engage, get results and survive the process emotionally.
LiPs are just like our clients – but without lawyers to explain the law and procedure, tell them when their position is crackers, refer them to mediation, respond calmly to upsetting letters, manage their expectations, explain their position to the judge – and so on.
In the past, when a good proportion of LiPs had chosen to represent themselves, the notion of LiPs as the ‘awkward squad’ might have had some validity. Not now. The problem lies not with LiPs but with the absence of accessible support and advice. To be accessible in any meaningful sense, information needs to be easily accessed, affordable, and simple to understand and apply.
The solution to these profound difficulties does not lie in the hands of either the legal profession or the judiciary, but a broader community of professionals committed to access to justice. We have an obligation to do our best to help make it less bad for those the system exists to help.
There is no complete substitute for sound legal advice and representation. However, we must help disseminate information and signpost LiPs to reliable sources of information which also incorporate an element of expectation management. This is the single most important thing we can do as officers of the court.
Lucy Reed is a family law specialist at St John’s Chambers, Bristol, and author of The Family Court without A Lawyer (Bath Publishing, £30)