No one wins from litigation in person
The lack of legal aid for private law children and family matters, save for in cases of domestic abuse, is driving more parents to represent themselves in court. The latest Ministry of Justice figures show that nearly 36 per cent of cases included a litigant in person.
Last month the incoming president of the family division of the High Court, Sir Andrew McFarlane, warned that the withdrawal of legal aid had “plainly caused difficulty” and he worried about parents who “walk away because they simply cannot face the court process”.
Whatever the reasons for the increase in litigants in person, the impact on the courts cannot be denied; it makes the proceedings more difficult for all involved.
Family lawyers frequently have to deal with parents who are litigants in person. Those litigants are often confused by the legal process or, worse, overly bullish and unwilling to engage in any reasonable discussions.
They often create unnecessary delays and expect lawyers on the other side to be constantly available. One parent delivered three plastic bags of documents to our office the night before a hearing and expected us to organise them for the court. They frequently threaten to report solicitors to the regulator if they do not comply with their requests.
The impact on clients who are paying for the benefit of being legally represented is increased costs. The burden of court preparation falls on them as the represented parties. There can also be a power imbalance, as litigants in person use their power to drive up the other party’s legal fees with unnecessary applications and correspondence.
Judges become frustrated with litigants in person and direct their legal argument and questions to the represented party’s lawyer. They may also appear to give the litigant in person the benefit of the doubt and direct further hearings or extensions to deadlines, which would not normally be expected.
Resolution, the family lawyers’ campaigning group, is considering the impact of litigants in person in family law and has interviewed parents who have acted in person. They reported feeling baffled by the legal terminology, confused by the court proceedings and ignored by judges and lawyers.
Recently, at a pro bono law clinic, a father in his early twenties asked a lawyer to review his application to have contact with his daughter. He was a student and had limited funds from part time work. He was close to tears as he struggled to understand the law and the fact that the lawyer could only offer him half an hour’s advice.
We train for years to become lawyers and it is unrealistic to expect parents to represent themselves in court. The legal profession as a whole must consider how best to support litigants in person, as the government’s plan to drive parents away from court and into alternative dispute resolution has not worked. If we cannot improve the system, the losers will be the children whose parents, as Sir Andrew said, simply “walk away”.
This article was originally published in The Times and can be accessed here, behind a paywall.