CONSULTATION RESPONSE – P.S. TO KEN CLARKE

A point I wish I’d made in my consultation response in respect of the rise of the litigant in person and the impact on access to justice:

The family jurisdiction is often thought of (by non-family lawyers at any rate) as law-lite (we know this because chancery and criminal lawyers take especial delight in telling us this at every opportunity. Such is the limit of excitement at the drier end of the bar). Insofar as there is not a vast quantity of black letter law, and insofar as one cannot rely upon statute to find the answer to any particular question, this is absolutely so.

But it does not follow from this that family law is easy. I am discovering this as I try to gather together the last sections of my handbook for litigants in person – the more I explain, the more there is to explain. There may be comparatively little technicality, but there is a lot to explain that is not written down in any document, other than a vast and confusing matrix of caselaw.

Family law is a broadly discretionary jurisdiction, where statute offers little more than checklists and all encompassing criteria to be weighed and balanced depending on the unique factual matrix of each case. It takes lawyers years of experience to build up a feel for where the judgment of the court is likely to fall, to become familiar with the mass of caselaw, which guides but which rarely offers any definitive or determinative guidance of broad application and is often heavily caveated as “fact specific”. A family lawyer must be aware of nuance and factual subtlety, of the foibles of the individual tribunal or of local practice, of the raw practical limitations on what the court can achieve in the real world, of the inherent unpredictability of this kind of discretionary jurisdiction. Predicting outcomes is often impossible, judging prospects and what stance to adopt can be exquisitely difficult.

At one level the comparatively small amounts of black letter law might tend to support the idea that the litigant in person will be able relatively easy to get to grips with it. It is true that the idea of the welfare checklist or s25 are pretty easy to grasp conceptually. But applying them to the facts of one’s own case, through the emotional haze of a relationship breakdown and separation from one’s children? Difficult to impossible I would think. We can all understand the concept of best interests, but rarely do litigating parents agree on what it means in practice for their children. The same goes for s25. And so the very flexibility of the statutory material can become for the litigant in person a charter for whatever position they choose to adopt. How can they see that it is ill conceived or unlikely to be adopted by the judge? They will see that their position is exactly in accordance with the law: that their proposal will achieve the child’s best interests or a fair outcome in respect of the finances.

We can expect litigants in person faced with law that is all about judgment and balance to do no more than to apply their own judgment. It is a rare person indeed who can visualize and analyse the case from anything other than their own perspective. I am certain that were I to become involved in family litigation I would be utterly unable to objectively assess my own case and would have to resort to independent advice. How can we expect the lay person to do this alone and to adopt a reasonable position in proceedings? Where litigants are reliant upon interpreting this type of law themselves it is highly likely that litigants adopting objectively unreasonable or unmeritorious positions will be fortified by it, confident that they are offering the judge that illusive right answer.

A book like the one I am writing can only go so far. It can offer guidance, explain matters from multiple perspectives. But ultimately it cannot ever be accessible for everyone and even those who read it must still successfully apply its contents to their own case. It is not and cannot be the same as individual legal advice. I hope that at least it will help litigants on the receiving end of sensitive directional indications from the judiciary to interpret and place those cues in context so that they can modify their position and not persist with hopeless or misconceived positions. I hope that it will give them the tools to focus on the issues and approaches that will help them achieve the best outcome and the best approximation to justice that are possible without advice and representation.

The rise and rise of the litigant in person that this government is so untroubled by is a recipe for more litigation, more protracted litigation, more cost, more unhappiness and poorer outcomes for children, for families and for justice.

8 thoughts on “CONSULTATION RESPONSE – P.S. TO KEN CLARKE

  1. What struck me when I researched LiPs with Mark Sefton was that the litigants had to overcome the fear of going it alone (many I suspect did not and gave up or never started cases in the first place). But those who had overcome the fear factor had to grapple with a case where they knew no substantive law, nor any procedural law, nor evidence and then had to speak in a highly stressful semi-public situation (when many would never have done anything of the kind) where the stern, schoolmaster type has (in their mind) a whiff of the prison gates about them. It’s an almost impossible task and one which judges are not well-trained to cope with. To put it another way, I imagine my first day as a trainee solicitor in a chambers appointment (where I got asolutely whipped by an opponent with a distinctly shifty client) and deciding that instead of doing it myself, I get my mother to do it instead.

  2. Lucy, exactly as you have described it, and more.

    Litigants-in-person do think its a simple process, and that they can do better than any qualified lawyer. They tend to get a bloody nose, and then blame the system for being biased against them, because their evidence was straightforward and precisely what was needed (In their own eyes)

    Last week I was assisting a LIP, and the Judge having very kindly given some guidance on the 5 issues, one of which he indicated that he was unpersuadable, the LIP was certain he could persuade the Judge that he was right anyway. The other four points he was certain that he could swing the Judge around to his position given an opportunity to put his case.

    An hour later, we exited Court with not only a bloody nose, but ten steps backwards and the LIP insisting that an appeal would enable a proper Judge to see the light, having lost on all five points, exactly what I had been telling him would happen.

    I hope your book has chapters on how to be realistic, and how to be honest with yourself as to your abilities, and how to compromise.

    Maybe a few sentences on how not to believe everything your mates tell you, and perhaps touch on the right way to behave in Court.

    Looking forward to reading your book when its available.

    Swiss

    • Dear Swiss,

      Yes, I hope it will engender a realistic approach without being a counsel of despair.

      It already includes appropriate warnings about not believing everything you read on the internet or in newspapers, your point about not believing everything your mates tell you is also a very good one – along with not following their advice to the letter! Many a time have I had a client prefer their mate’s advice over mine, and it rarely ends well. Although having a truly wise friend at court can be a real blessing, particularly where a litigant is wary of their own lawyer who they see as part of the system.

  3. Practical help to save legal aid

    If you would like to help, and can spare two minutes this week, you can help by going to the website 38 degrees, scrolling down to new ideas for campaigns, and voting for a campaign on the legal aid reform proposals… Last week it was 13th on the list, but I understand it is now 5th. If enough people vote for it, it will start to snowball… it seems to have helped quite a bit with the forest sell-off issue (over 500,000 people), so do please give it a go.

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  4. Provincial Solicitor

    Well, I’ve left my comment and votes on 38 degrees. It’s up to third place, so make your voice heard.

  5. Perhaps your book should also include anecdotes from people having to apply to vary orders having had no representation the first time round and having been shafted to the highest order!! – “I should have paid for a solicitor first time round, would have saved me thousands” type plea …

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