The fourth edition of my book The Family Court without a Lawyer – A Handbook for Litigants in Person is available to pre-order now. At the moment, if you order it directly from the publishers you get the digital edition free! Wey-hey! It’s all for only £20! Which, given how much blood, sweat and tears has gone into it I think is a bargain, frankly.
It’s also available to pre-order on Amazon if you prefer (but no free digital edition). Actually, if you do order from Amazon, please use THIS LINK, which hopefully (if I’ve got it right) will take you via Amazon Smile which allows you to raise money for The Transparency Project as you shop (you may need to select The Transparency Project as your charity of choice). Double win!
I’m told the pdf digital edition will be ready imminently, so if you pre-order now you can have access to that pretty much straight away whilst the hard copies are being printed and distributed. The Kindle edition will be available very soon too.
It would probably help if I told you what is in the 4th edition that isn’t in the 3rd. Obviously, it has been comprehensively updated, because quite a lot has changed since the last time I performed this task in 2017. In fact, I think this is the most substantial update the book has had since the first edition in 2010.
Apart from the additional pressures and different ways of working that have been compounded and accelerated by the covid pandemic (more use of digital platforms, electronic documents, and remote hearings, greater pressures on resources and longer delays), there have been some important changes to the law and procedure in a couple of areas, most notably in connection with divorce and domestic abuse.
As of a couple of months ago we now have ‘no fault divorce’ in England and Wales, meaning that you no longer need to prove what a rat your ex has been, accept that you were unbearable partner or wait years in order to obtain a divorce. If your relationship has broken down you are (with very few exceptions) now entitled to divorce. Although this makes things much simpler and hopefully less unpleasant, there are lots of changes to the process of getting from A: married 🙁 to B: divorced 🙂 , which the book sets out.
The whole approach to domestic abuse has become much more sophisticated over the last few years, and with that better understanding of what victims of domestic abuse need to be able to make use of the court process and to keep themselves and their children safe, comes a shift in procedure, in rules – and in law. Whether you are a victim of abuse, or someone who has been accused of it (rightly or wrongly) you need to understand what to expect and what protections the court offers to you. The book sets all that out, including those parts of the Domestic Abuse Act 2021 which directly affect family court cases. These primarily relate to what special arrangements (participation directions) the court will make where there are allegations of domestic abuse between two parents, and in particular what happens if one of them doesn’t have a lawyer and they need to be able to challenge evidence they don’t accept but without being allowed or required to ask questions of their abuser or the person that is accusing them. In addition, the Act brought changes to the law around when a court can filter out future applications (often called barring orders), making clear that these orders can be appropriate much more often than to date.
As ever, I hope the book will be useful and will help you to navigate an anxious and confusing period in your life. If you do end up going to court, knowing a bit about what to expect is as good a way as any of managing your anxiety and of thinking through your options. If you can avoid court, do – but if you can’t, then go prepared.
If you aren’t persuaded, do follow the link to the publishers above and you can read some nice reviews some lovely people have written about the previous edition.
And now, after months of waiting for the final pieces of new law to drop into place, for new regulations to be issued, and for my final edits and corrections to be sorted… I am going on a well earned holiday (just as soon as I do one final hearing). See you in the autumn.
There is a serious point here. The Family Procedure Rules are about to be amended (as of 6 April July). One of the amendments is one that Litigants in Person really need to be aware of – it’s about communication with the court. Really the rule change I’m referring to is just formally confirming what SHOULD have been happening in any case, but the fact that the rules have been changed to spell it out is an indicator that there has been a problem that the powers that be are trying to alleviate. And that in future courts may be less tolerant of litigants in person sending things to the court without copying in the other people in the case.
When cases are run by lawyers, the lawyers know that (with very limited exceptions) anything that goes to the court or is seen by the judge has to be sent to everyone in the case. Copying in the other lawyers or parties is routine when corresponding with the court. The Family Court (as with other courts) works on a ‘cards face up’ basis. You don’t have secret communication with the judge, and you don’t get to ambush people when they only find out about some document or evidence you’ve sent to the court when the judge mentions it in passing (or if you do you run the risk of the whole hearing being put off because the other side needs time to read and think about it before its fair to go ahead).
Litigants in person don’t always appreciate this. They very often send things to the court without sending them to the other party. Either because they mistakenly think that the court will keep it private on request, because they assume that the court will send it on their behalf to the other person (wrong!), or because they haven’t thought about it at all. It has to be said that some litigants in person seem to persist in doing this even when they have been told – and it is hard not to draw the conclusion that they are doing this to try and disadvantage the other party by not giving them notice of their position or evidence. This can result in unfairness, chaos, adjournments and wasted costs when hearings aren’t effective.
I’ve been banging on for years about the need to make sure that anything you send to the court or give to the judge is also provided to the other party or their lawyer – that’s where the one for all comes in. Always take three copies. One for you, one for the judge, one for the other party : one for all.
So, that new rule :
Communications with the court
5.7.—(1)Any communication between a party to proceedings and the court must be disclosed to, and if in writing (whether in paper or electronic format) copied to, the other party or parties or their representatives.
(2)Paragraph (1) applies to any communication in which any representation is made to the court on a matter of substance or procedure but does not apply to communications that are purely routine, uncontentious and administrative.
(3)A party is not required under paragraph (1) to disclose or copy a communication if there is a compelling reason for not doing so, and provided that any reason is clearly stated in the communication.
(4)A written communication required under paragraph (1) to be copied to the other party or parties, or their representatives, must state on its face that it is being copied to that person or those persons, stating their identity and capacity.
(5)Unless the court directs otherwise, a written communication which does not comply with paragraph (4) will be returned to the sender without being considered by the court, with a brief explanation of why it is being returned.
(6)In addition to returning a communication under paragraph (5), where a party fails to comply with paragraph (1) the court may, subject to hearing the parties, exercise its case management powers under Part 4.
(7)Paragraph (1) does not apply to communications authorised by a rule or practice direction to be sent to the court without at the same time being provided to the other party or parties or their representatives.
[my emphasis]
I’m confident that by this point some of my non-lawyer readers will be wailing at the screen – but lawyers are sly. They do things behind our back…They trick us…
There is a flip side to this rule, too. No doubt it isn’t just intended to regulate the behaviour of litigants in person. It is also intended to regulate the behaviour of lawyers. Although in my experience lawyers are pretty good at cc’ing all the right people, they do also get it wrong sometimes. Whilst lawyers are usually careful to cc all the other lawyers when communicating with the court they do on occasion (in my experience) forget to cc a litigant in person and they get left out of the loop. This is usually unintentional in my experience but it does matter. This rule will impact on that too.
There are occasions where a judge will ask a lawyer to e-file an order and will permit it to be sent directly for checking by the judge without prior liaison with a litigant in person, and personally I often make a point of requesting this on the basis that it is very difficult to manage expectations or avoid additional extra workload if a lawyer drafting an order is expected to get it agreed before sending it in – it is almost NEVER agreed because litigants always want to have a second go at arguing their points through email, and the judge has to check and correct the order anyway to make sure it reflects their order so its just pointless duplication of work. That is just my view however, and under this new rule it will be even more important to specifically seek permission to do it that way.
Practically speaking there are problems in a case where the court expects a lawyer to be responsible for orders but where a particular judge takes exception to a litigant in person having their email address, as lawyers are sometimes expected to email the judge separately, and then strip out the judges email address before forwarding a copy to the litigant in person, making things very cumbersome if there are further exchanges – not to mention creating an impression of privileged access to the judge. The reason that some judges don’t like their email addresses being given out though is that litigants in person then often repeatedly use the direct email address to communicate with the judge, seek advice, complain about issues etc etc between hearings – all bypassing the court office and other parties risking things getting lost. And so we’ve come full circle and we are back to the need for the rule – anything that goes to the judge must go to the other parties.
Those of us who take great care to cc everyone into EVERY email we send to the judge might dare to hope that this rule will prompt some judicial training in the use of the ‘reply all’ button, to which most judges appear to be allergic – it is a source of low level irritation when attempts to communicate transparently lead to repeatedly having to relocate and punch in everyone’s email address in order to forward the judge’s reply to your copy all email, in order that nobody thinks you are having secret discussions with HHJ. Not holding my breath on that one though.
So. If you are a litigant in person here is the deal :
Anything you send to the court or ask the judge to read must go to the other parties in the case at the same time (or their lawyer if they have one)
UNLESS for example you are unable to serve them directly because their address is confidential and they don’t have a lawyer – then the court will have to send it on. BUT YOU WILL NEED TO CLEARLY ASK THE COURT TO DO SO AND SAY WHY OR IT WILL GET LOST.
If there is something that you think the court needs to know but the other party shouldn’t see the court can permit that, but there will need to be a VERY good reason and YOU WILL NEED TO CLEARLY SAY THIS IS YOUR REQUEST AND WHY. It isn’t automatic – the judge might not agree. The sorts of things that a court might agree shouldn’t be sent to the other party probably include things like particularly sensitive medical information about why you can’t come to a hearing, or a situation where there is important information that the court needs to know about but where there would be a risk to someone’s life or safety if the other party found out (honour violence type of situations for example). They also include situations that are already allowed to be sent without telling the other party, such as ‘without notice’ injunction applications. ‘It’s a bit embarrassing’ or ‘it’s personal’ are probably not going to cut it here.
If you don’t explicitly say that you are copying in the other parties (or their lawyers) the court may return your material unread. Don’t rely on the fact that the email cc box will show who the email has been sent to because the rule requires you to say WHO it’s been sent to (sometimes it is not possible to work out from a non-business email who it is that is actually cc’d because some personal email addresses don’t reference the person’s name) AND their CAPACITY e.g. the First Respondent, the Applicant’s lawyer.
You should expect to be cc’d into any communication the other party or their lawyer sends to the court, with very limited exceptions. Sometimes judges do ask lawyers to draw up and send in orders directly to them, but the lawyer’s job is to draw up an order that reflects what the judge has said and the judge should check that they’ve done so accurately before issuing the order.
This is a review by Rodney Noon of a book co-written by myself, Julie Doughty and Paul Magrath. It originally appeared in Nagalro’s Seen & Heard (Vol 29, Issue 1, 2019) and is reproduced with kind permission.
When selecting books for review, it has been my policy to filter the lists by asking, ‘Is this a book which might justify a place on a practitioner’s bookshelves?’ Since receiving the review copy of this comprehensive exposition by my predecessor at the helm of Seen and Heard, the Chair of the Transparency Project and counsel at the Incorporated Council of Law Reporting for England and Wales, I have twice reached for it and twice found the answer. It is difficult to offer a practitioner’s text higher praise.
The issue of transparency within the Family Court and Court of Protection is very current and subject to rapid developments. Since this book was published, we have seen the advent of facilities for legal bloggers to attend hearings int he family court. It would have been wonderful if everything could have been gathered up into a single, comprehensive piece of legislation and a dedicated part in the Family Procedure Rules, so that when an issue suddenly ambushed a practitioner from the dark corner of a file, they would know where all the rules were to be found. Sadly, that is not what has happened.
The rules are found scattered across a range of (Sometimes obscure) pieces of legislation, diverse parts of the rules and a range of judgments. It is a tribute to the thoroughness with which the authors have approached their task that they have managed to gather all the scattered pieces together and to form them into something resembling a comprehensible whole. It is no fault of the authors that there are places where the bits just do not fit. Pieces of different statutes point in different directions and two judges have taken different approaches to the same issue. It is to the authors’ credit that they do not shy away from these problems; instead they explain the contradictions, describing the world as it is, not as we might like it to be.
This is not an academic text book. It is written for practitioners to tell them clearly where to find the right rules and what they actually say. I was particularly impressed by the helpful section about monitoring social media and how to get things removed.
Whether lawyer or social worker, we all need to understand the changes which are happening within the environment in which we practice. We would all be better practitioners for carefully reading this book.
Rodney Noon is a Solicitor-Advocate, Bradford, W Yorks.
