Having written a guide for litigants in person in family courts some time ago I have been waiting, post LASPO, for the MoJ to catch up. So I was interested to see that HMCTS have produced a new leaflet CB7 “Guide for Separated Parents: Children and the Family Courts” that is now appearing in some (but not all) courts. It provides a link to the MoJ You Tube Playlist “Guides for separated parents”.
This comes almost a year after I asked for permission to film in a court to produce a series of short information videos myself – a request which was never substantively responded to in spite of chasing. Hey ho. Any help for LiPs is good news. But how much difference is this new bundle of HMCTS help likely to make? My view, having laboured hard over my effort, is that genuinely helpful material is actually really hard to get right – and drafting has to be very tight to avoid introducing confusion and consequently doing more harm than good.
The leaflet has the Plain English Crystalmark which is encouraging. The problem is that law is not plain English and making something simple is not equivalent to making it accurate. Stripping away jargon is one thing, but it still has to convey the correct meaning. So, it is slightly disturbing to see a definition in the leaflet of a Litigant in Person as “someone who goes to court without a solicitor”. Call me a pedant, but people attend court without solicitors ALL THE TIME. They are witnesses or they are parties who are routinely represented by counsel (or legal execs). They are not Litigants in Person.
This may seem petty – but it is actually quite important. Not least because it diverts “Litigants in Person” (for which read “people who can’t get legal aid any more”) from an important alternative option – direct access to the bar. Reading CB7 it is as if one can have no advice or representation except through and by solicitors. When CB7 says “solicitor” it really means “lawyer”. I imagine the Bar Council, if it were aware of the leaflet, would take issue with this cutting out of the bar from the official guidance material. It is a missed opportunity to signpost.
And the videos. Oh, the videos. It is unfair I suppose to criticize the hap happy /beauty-spa-style-relaxing musical background, but it is pretty dire. But it was that or Radiohead I suppose, so let’s put the elevator music aside.
There are a series of 4 videos, “Family Mediation”, “Making your application to court”, “Attending the first hearing”, and “Attending a full hearing”.
The mediation film is a pastel coloured cartoon involving level headed birds notably not pulling their jointly owned worm in two, with uplifting music. There is no mention of lawyers in the video, notwithstanding the fact that financial agreements reached in mediation will often need to be drafted and lodged with the assistance of lawyers to be made binding. Whilst it warrants only a brief mention in a video of this sort, it does in my view warrant a mention.
The latter 3 videos feature an Asian woman (presumably mum) and a white male (presumably dad). In the course of the three videos, and within each of the videos, the parties appear unrepresented, represented (by different advocates), in a Circuit Judges court room, a district judge’s chambers (before the same judge) and - in the course of the same hearing it seems, according to the voiceover - before a bench of magistrates (who are described as “Judges” – which they are not). Beautiful as the shots of the exterior and interior of the lovely Barnet County Court were (I shed a nostalgic tear recalling some of my trials as a baby barrister there, including one particularly fierce b*llocking from a Circuit Judge in the very courtroom featured), I found the footage impossible to follow – and not at all an aid to an understanding of the voiceover (which one would assume is the point of choosing video as a medium).
At times it appears as if the Father is represented, and it is not without viewing and reviewing that I was able to infer that the woman who is sometimes sat beside him is probably meant to be a CAFCASS officer (I’m still not sure). Oddly, the Father does not bring his McKenzie friend into court.
Perhaps a Litigant in Person would not notice these things; perhaps it would pass them by in the haze of procedural confusion that many Litigants in Person struggle to cope in – but it is pretty ironic that whilst the voiceover reminds people not to behave as they have seen lawyers behave in tv dramas these videos are guilty of even more heinous legal continuity errors than Kavanagh. And aren’t these videos meant to be an attempt to use visual medium to clarify the process – who is who, and who sits where are actually important sources of confusion and anxiety for Litigants in Person.
And moreover (although I have no idea if this was scripted) the actors wore rather odd expressions – the Mother looking mightily naffed off throughout as the judge evidently made orders she did not like, the Father (sat directly opposite the Mother at times) smiling rather creepily and generally looking a bit smarmy. As the series moves on the videos appear to be focused primarily on the male Litigant in Person – the Mother seems represented throughout whilst the Father is in person. It is interesting but not surprising that this directorial choice was made: For sure it is most likely to be men who are in person post LASPO, (although significant numbers of women will be in the same situation), but the overall impression created is of a rather an unimaginative view and an over reliance on stereotyping, which is unfortunately consistent with the MoJ website which inferred that legal aid is only available to female victims of dv (now corrected).
There is a section in the videos about McKenzie friends. This too is not strictly accurate. It gives the impression that anyone who attends court with a Litigant in Person is a “McKenzie friend” and that they can also come into court. The correct way to explain this would be to state that a Litigant is entitled to bring anyone to court as it is a public building, and they may communicate information about the proceedings to a friend for the purpose of seeking confidential support or advice (Rule) but that they cannot bring the friend into court without permission. A friend permitted to come into court and support – but not represent – is called a McKenzie friend. The “Mckenzie friend” featured in the video never comes into court.
Inexplicably, there is no reference in any of the videos to the availability of legal aid in d.v. or child protection cases, except a reference to the possibility of legal aid for mediation. There is no signposting at all for those who are victims of domestic abuse either towards a legal aid solicitor or to other agencies. There is a perfect opportunity to include such signposting when referring to the C1A allegations of harm in the “Applications” video – and if nothing else, viewers could have been pointed to the (now accurate) eligibility summary page on the Justice website.
All in all, these videos have to be a positive contribution to the materials available to Litigants in Person dealing with family matters. For all my criticisms it is easy to pick holes in hindsight, and I'm sure I would have made some errors had I been let loose on my own video. But even ignoring my counsel of perfection they are only a tiny sticking plaster on a very big problem. And they have only 182 views (a large proportion of which were probably down to me trying to work out what the hell was going on in them).