Litigants in Person – Smooth on the outside crunchy on the inside

Litigants in Person are a lot like armadillos. I know this: I’ve written a book about them (Litigants in Person not armadillos). Although, unlike Harry Enfield, I’ve found them sometimes to be a bit more spiky than smooth.

But I’ve been thinking about the internal bit a lot lately, because I think it’s the key to working out how to handle that spiky exterior.

Last week I were on t’telly. I travelled all the way up to Salford to Media City, to a world full of producers and makeup artists and green rooms full of pain au chocolat, and I sat on that red BBC Breakfast sofa and tried to pretend I wasn’t petrified. I only had to talk for about 20 seconds, and to answer questions I can happily answer without a thought – when I’m in my comfort zone. I’m told I didn’t look like the rabbit in headlights that I felt myself to be, that I looked calm and collected and sounded reasonable. But looks are deceptive. Like a Dime Bar. Sort of.

On the 6.20am slot, hairsprayed and blushered and eyelined to within an inch of my life in order to disguise the fact I was scarcely awake, I heard myself drawing an analogy between my fish-out-of-water sensations on that sofa and the fear engendered by an unfamiliar environment for a litigant in person. I’m a lawyer, but I’m still petrified here today I said (or something along those lines – when I’m nervous my recall is poor). They had shown a clip of a woman saying she was used to public speaking and she’d be happy to represent herself in court. I didn’t think it was that straightforward – I think it’s about being in an unfamiliar environment where you don’t understand the rules. And I can’t stop thinking about my analogy – because I think I inadvertently articulated something quite important.

As it happens I was able to overcome those feelings and get through my own personal trial without swearing, burping or saying something hideously embarrassing – but we barristers are used to taking a deep breath and then plunging into what we know will be excruciatingly embarrassing submissions that cannot make up for an unsustainable position. We crack on, do our best and focus on our 4 o’clock horizon (not that we ever finish at 4!). It’s not quite the same for a litigant in person who might well clam up, fail to articulate their point or get angry or upset – and who has a vested interest in the outcome. But, all that said, being on telly was way way out of my comfort zone and whilst I may have appeared as a well coiffured armadillo on the outside I was mush on the inside. It’s a miracle it didn’t show, and I suppose some comfort to those in similar circumstances that your nerves might not notice that much.

But I think that all lawyers would do well to remember that feeling – the one you had in the pit of your stomach the first time you mooted or the first time you were on your feet proper (and in my case every time thereafter for the next five years). And remember that if you are a lawyer you have a certain aptitude for advocacy above and beyond the general public. If you want to work towards a resolution of a dispute on behalf of a client you need to try and understand a bit about what it is like to be a litigant in person – to imagine their experience of the process. And frankly, it’s something you should just do, as a fellow human being. It’s called empathy and lawyers should be better at it.

As an aside this experience also set me thinking about the likelihood that in future there will more often be press in court than we at the family bar are presently used to. I am in awe of advocates who operate in open courts, particularly those where there are juries and routinely members of the public and the press. An inadvertent spoonerism or a stumble is embarrassing whenever it happens, but I am used to a limited audience and an audience whose identity is known. Although I support greater transparency, on a personal level I’m apprehensive about being watched – it’s not what I’m used to. I wonder if it will make some advocates choose their words more carefully – and then I wonder if it will affect the ability of litigants in person to engage, to give frank evidence and to articulate their case. I don’t know the answer but that sofa experience, the knowledge of that vast unknown audience, really had a profound impact on me. On one level the oxygen of publicity is healthy, particularly in the case of those who are cavalier about manipulating the truth to their own ends. But it may be stifling for those who are already out of their comfort zone and who are currently helped by knowing that – if nothing else – their very personal issues are private. Some litigants in person will want the press in court to see and report the injustice or perceived injustice, to hear the lies and their rebuttal of them. Others who have important truths to tell may feel unable to tell them. In either extreme lies a danger than neither parent nor child will have access to justice.

Someone (of course) will say that me going on a jolly to Salford and sitting on a sofa talking rot for 20 seconds is not comparable to the experience of a litigant in person, to the experience of a father desperately trying to persuade the courts to let him see his children, in the face of heinous fabricated allegations (for example) – and that it is either foolish or offensive to draw such a parallel. Of course. I haven’t been in that situation. But it did make me think – sh*t, it must be truly terrifying, awful, to have to do this stuff alone, when the stakes are so high and when everyone else but you is totally familiar with how it works. And I am a parent, so I know how blindly passionate we can be about our kids, how terrifying the thought of losing them is. And the fear of financial uncertainty is not unfamiliar to those of us whose income depends on the whim of the Legal Aid Agency.

And those of you whose read this blog will know that I have had my own experience of protracted litigation in which I was, for a time, a litigant in person against whom allegations were made (not a family case and the allegations were not made out – it’s a long story and rather dull). I was legally qualified (although far from an expert in the area of law in question), used to advocacy, and “only” dealing with a litigant in person rather than a lawyer on the other side. Still, the one hearing when I did represent myself – even though I was safe in the knowledge that the court was bound to come down in my favour (it did), and even though I knew I had nothing to worry about – left me jittery, weak kneed and less than my usual articulate self (not least because there were assorted counsel sitting at the back whilst waiting for their case to come on). Based on my sofa experience I guess it probably didn’t show (smooth on the outside), but I didn’t enjoy it. This experience in particular gave me some insight into how litigants must feel when they are defending themselves against unfair or untruthful allegations, or who are faced with litigation brought by an ex who just WON’T give up – even when they are represented. It is draining, irritating, upsetting, frustrating. In my case litigation dragged on for 3 1/2 years notwithstanding its lack of merit (as found by every judge who dealt with it). I didn’t want to be involved in litigation. I wanted to get on with my life and to focus on my kids. But when you are faced with someone who is determined to persist in their fight for what they see as justice you are forced into responding, defending your reputation, correcting errors, stating the obvious. Again and again.

This is what it must be like for many parents. Some will be faced with constant accusations of inappropriate behaviour raised as a barrier to contact, others will be faced with never ending applications for more contact from a parent who is just never satisfied. Mediation in those cases? *hollow laughter* You can’t mediate with the litigant who is “fighting the fight”, who is determined to “win” or to secure “justice”, asssured of his righteousness.

What I’ve learned from this is that there is often a power imbalance in litigation, and one that is somehow enhanced through the process itself – the persistent litigant has control on his (or her) side, and that persistence can grind down the respondent to it, the exercise of control can retraumatise those who experienced it in the course of the relationship. Equally, the primary carer resisting contact has one big card on her (or his) deck – access to the child, and in practice the power to make contact happen or not. In some (many) cases the parents each fit one of those tropes. And it is crucial I think to remember that in some contexts even litigants in person can wield significant power, through manipulation of court process and their very status as a litigant in person, through persistence of litigation – and those are things that both courts and those on the other end of the dispute find very difficult to deal with.

Armadillo means “little armoured one” in Spanish. We need all to remember that a smooth exterior may not tell us what is really going on inside.

49 thoughts on “Litigants in Person – Smooth on the outside crunchy on the inside

  1. Lucy,

    And to think I thought that you didn’t understand! Well- good for you if your brief sojourn on the sofa was a Damascene moment; at least you have had the courage to admit it. Where you chime especially with fathers is: ‘ it must be truly terrifying, awful, to have to do this stuff alone, when the stakes are so high and when everyone else but you is totally familiar with how it works. And I am a parent, so I know how blindly passionate we can be about our kids, how terrifying the thought of losing them is.’ – and of course any mothers too in that situation. I often think that your gender- whether mother, Solicitor or Barrister- does not fully appreciate that we men love our children with the same intensity as a mother. Because you bore them; it must be hard for you to appreciate that the love, the bond, the passion can be as strong. Well, let me tell you that it is- every bit.
    It would do well for every one of your colleagues, male and female, but particularly female, to read this post of yours and to reflect long and hard on it. To think about it the next time they head to Court. It may well make them more empathetic to their male clients and when ranged against an LIP in the future, as you say- they may approach their opponent with more empathy and less aggression.
    Sincerely- good on you Lucy for writing this post.

    • Anthony, Not exactly a damascene moment – it’s not like I haven’t thought about or realised these things before – just a timely reminder that’s all.
      I think that it is easier to empathise with the dads you talk about as a mum who is the main breadwinner with partner as primary carer (whatever that is). I think that often the parent in the vulnerable position on separation is the one in my role – whether mum or dad – and not the man per se. On the other hand the one with the income has a certain advantage that the non working parent does not. I think that many of us at the bar have non traditional family set ups in order to balance the demands of work and home, and I think it’s unfair to generalise by suggesting female lawyers don’t fully understand the situation. Half of our clients are men. The tears they shed are just as real as those of our female clients. I hope that lots of my colleagues do read the post – we could all do with reminding of the human side of what we do from time to time – but I don’t think that the profession as a whole is as behind in these areas as you suggest. Most of my lawyer colleagues and friends are not that different from me.

  2. My, you do go on.

    Never-ending applications for contact would be ended by making proper provision for it in the first place.

    As for dealing with constant accusations of inappropriate behaviour, good question. Why not make representations yourself to the judiciary to deal with it. Get a few parents fined or jailed for making false statements, stuff like that.

  3. Lucy:
    1. The main income earner being in an invidious position- you have a point. One of the reasons i am delighted that legal aid has been stopped for Family Law: The main earner has to pay for representation while his/her other half can get LA and therefore string out cases.. (ignoring/breaking CO’s etc in the certain knowledge that it’s not costing them a penny while the ex is paying through the nose- of course in the vast majority of cases- the man.
    2. Glad to hear you think most of your colleagues are as empathetic as you- i know from long experience that a great number (maybe reducing as the younger ones come through) are not!
    3. I suspect ‘Paul’ is referring to me and not you! answer Paul: You are either one of the uncaring Sols i am referring which case you ought to know better..or you have absolutely no knowledge of the FL system yourself. If the latter-let me explain:’making proper provision…first place’- is about the most ill informed statement I’ve heard in a long time. Which leads on to your second point. Judges ‘make provision’..problem is their ‘directions/orders’ have no teeth. Judges will not put a mother in prison…fines are rarely/never used. Therefore an implacably hostile parent with care can ignore orders with impunity and nothing happens. She can also lie through her teeth (false allegations to you and me!) and again nothing happens as perjury never has consequences in the Family Courts. The only thing that may happen is that she gets dragged back to court…again ..& again.- Which u object to- in these circumstances how else does a loving father get to see his kids? (Before u come back..I know a woman or three has served time for this..but u can count on fingers of two hands number that have. There is ‘talk’ of community orders/fines/driving licence forfeiture…but it’s only judges are walking the walk. 2: Make representation: What a joke..FNF/F4J has been ‘making representation’ for years…progress has been made but it is veeeeeeery slow. The Judiciary is a law unto itself..and my makes sure it will keep it that way!

    • Anthony,
      Whether or not you are right about the willingness of the judiciary to enforce through imprisonment or other routes, my experience is that very few parents make applications for enforcement or committal. The court has no power of its own motion to make those orders in the absence of an application. Perhaps this is partly down to advice being given that such applications are best left to further down the line – they are a high risk strategy and can make things worse – but I’ve certainly seen very few applications being made, and accordingly very few being refused (or granted). Its almost as if the 2006 reforms never happened. Perhaps though there are pockets where these applications are regularly being made and my perspective is very local – would be interested to hear if its different elsewhere.

  4. Lucy: Got that ‘cheating huh’ error message again first time..Fortunately i copied it into Word this time so have re-posted. It appears to happen when one does a long post..or perhaps when one scrolls back up to top before submitting.
    Anyways perhaps u cd get your IT folk to look at it..but suggest anyone posting writes in Word then copies & pastes onto Lucy’s is intensely irritating to spend some time writing a comment and then lose it!!:)

    • The message I approved first thing this morning was one I had received twice – you had resubmitted before I had a chance to moderate.
      The one I have just approved was received only once. Not sure why it should have been rejected but if you inadvertently included a typo that spelt a banned word (a s. e. x. or swear word for example (some of which I have no control over) then that is probably enough. There is also a maximum word limit I think (not sure what it is off the top of my head). Haven’t had any other reports recently of any difficulties but will keep an eye on it. Have posted your comment for info for others.

  5. No Lucy…I certainly did not swear or use a s.e.x.word! So bit of a mystery that u received it cos i lost it!
    Will respond to your other response shortly when i have gathered some info..
    Thanks..i think this is a useful thread.

  6. A mother (usually) who fails to obey a contact order should be at as much risk of imprisonment as a father (usually) who disobeys a no-contact order – they are both in equal contempt of court. If that is wrong I wish somebody would say why.

    • Andrew, Put baldly:

      If a mother disobeying a contact order is sent to prison the children lose their main carer – in many cases they cannot be simply bussed over to their dad to stay / live with him to enable that to be carried out. The sending of the mother to prison at the very least will cause temporary upset and disruption to the children (even if the breach of the contact order was wholly unjustified), and at worst could result in them being very distressed or having to be taken into foster care if no other carer were available.

      A father who disobeys a no contact order is defying an order (I assume that when you talk about a “no contact order” you mean an order prohibiting him from making contact with the children which is actually pretty rare) which has been put in place to protect the children from some risk he poses. If he is sent to prison there is (probably) no direct harm to the children.

      An order simply saying “there be no order on the application for contact” is not enforceable in the same way as an injunction or a specific order requiring particular conduct – it is not an order prohibiting behaviour on the part of the father, it is simply a record that the court has declined to make a s8 order.

      A father who attempts to obtain contact where a court has simply declined to make a contact order is in the same position as any other separated non resident parent – the vast majority of parents don’t need orders to regulate the situation – he is not at risk of imprisonment, unless he is behaving in a way which amounts to a criminal offence or in breach of a non molestation order. If that is the case he will have to be arrested, charged, convicted and sentenced. If there is no order there is no breach and no contempt. If he is persistently attempting to obtain contact notwithstanding the wishes of the children, their resident parent and the views of the court he may find his actions lead to protective orders being made, rather than simply no order.

      Does that help explain it?
      Obviously I’ve generalised as I’ve tried to explain it in quite basic terms.

  7. The point I make – and by which I stand – is that refusing to commit a woman who disobeys the order because of the potential harm to the children is a surrender to blackmail – and that many mothers know that they will get away with it and put their own selfish wish to have nothing more to do with the father ahead of the child’s rights to keep in contact with him.

  8. Lucy,
    You are right..very few are applied for- and for the reason you have articulated above, but a different perspective from our pov.
    1. We know perfectly well that Mum will cry: ‘Your Dad’s going to put me in prison’ to the children..what will that do to the relate with our kids?
    2. Judges won’t enforce anyway because of the ‘best interests of the child’ argument.
    3. No Dad really wants to put the mother of his children in prison!
    So: We have a legal remedy on paper that everyone knows is why is it still there? Would it not be a lot more sensible for the Judiciary to remove it completely and start using sanctions that would work: Community Service- while kids are with Dad, fines when appropriate; reversal of Residence for particularly intractable cases.(It is done quite a lot in several US States and it works!) Instead we have this charade of threatened imprisonment that everyone knows is totally unworkable. Treating implacably hostile parents- of both sexes- with kid gloves does not work. The message that ignoring CO’s brings no consequences is far too prevalent and you would be amazed how quickly the message would get out if some judges started acting in a robust fashion.
    Below is a real case study from one of our members; who incidentally is an ex Police Officer of some standing- so I hope you appreciate it carries some weight.

    I did apply for a penal notice. It was about 10/11 years ago when daughter very young pre nursery. Ex had breached contact order about 10 times in 3 months.

    [contents of police officer’s email deleted for legal reasons]

    Like you I have been in FNF many years and when supporting other groups around the midlands I have come across several parents who have applied for penal notices only for the Judge hearing the application to comment as follows: ‘I’m applying the prime principle of the welfare of the child must come first; so I’m not granting this order as it’s not in the child’s best interest for me to punish the prime carer should there be any further breaches of the current order.’

    I know this second bit is only hearsay but I’ve heard it several times from unassociated parents spread across the midlands.


    PS. I think the court service keeps records of numbers of applications and outcomes. Somewhere in the back of my mind I recall a figure of 3% of applications actually get enforcement action. The other 97% are refused/fail.

    • Anthony,
      Sorry to have had to edit your email.
      Your points 1 – 3 are all perfectly valid – they are real difficulties.
      You talk about powers to enforce by community service and fine and reversal of residence as if they were hypothetical. Those powers all exist. As I mentioned in a previous comment in this thread – few people bother to make enforcement applications under s 11A-P CA 1989 so judges are not often asked to make those decisions. Often parents simply return the matter to court without making an application for enforcement by unpaid work order (its not called that but thats what it is) and courts have no power to make those orders of their own motion.

      On the stats point, no time to look up and I’m not quite sure what you are referring to – I think the stats show most applications for contact are “successful” – in that they result in AN ORDER – and in something like the proportions you quote. Not sure about enforcement action. I don’t know if you mean committals when you talk about enforcement or if you mean “enforcement” in the limited sense of s11A-P CA ?? I’d be surprised if the publicly available stats are that specific. Would be interested to take a look if you can find a link to what you were referring to. There is of course likely to be a high attrition rate on old skool committal order applications because of the criminal standard proof, and in relation to s11A-P there is a “reasonable excuse” defence.

      PS Took me a while to work out your ex police officer hadn’t signed his email off with a clutch of kisses!

  9. So long as the order is clear enough courts in NZ are pretty good at making sure contact orders are enforced.
    If a parent is being refused contact when the child is supposed to be with them they can go to court and apply for a warrant to enforce contact.
    This is generally a one off, although a judge can also make out a permanent warrant to enforce. The warrant authorises socicial services and / or police to uplift the child(ren) and take them to the parent they’re supposed to be with.
    The problem occurs when the ordcer is not clear enough or specific enough. In my role as a McKenzie friend when a plan is proposed I go through it for the full year making sure that no further discussion or agreement is required for both parents to know when the child(ren) are with them: there is a clear cut ‘default position’ – the parents can always agree to change but if they don’t agree it’s very clear what is supposed to be happening.
    I’ve come across parenting orders made by very experienced lawyers and judges where this is not the case and they wonder why there is continuing problems!
    Before I went self represented, I’d spent thousands of fair dinkum kiwi $$ gettting just such a problematic order.

  10. The problem occurs when the ordcer is not clear enough or specific enough…I go through it for the full year making sure that no further discussion or agreement is required for both parents to know when the child(ren) are with them…I’ve come across parenting orders made by very experienced lawyers and judges where this is not the case and they wonder why there is continuing problems!

    This is an interesting point. There does appear to be a prevailing view in the legal profession that highly detailed orders (i.e. apparently going through each of 365 days of the year as Ken does).

    I can see both sides of this. On the down side, if an order is too detailed its simply impossible to allow for the vicissitudes of life, and can only work if the parties are flexible and reasonable enough to ignore it when it isn’t workable. I can also see the benefit of the parties not micromanaging each other’s lives. And I doubt a court would view an attempt to enforce a technical breach of such an order with enthusiasm.

    On the plus side, perhaps there is some substantial benefit in actually agreeing all of this as a framework beforehand—at least then (in theory) every ‘normal’ day has been considered and variations from the norm can be dealt with as they arise. But there is a default “this is what is supposed to happen now except in unusual circumstances” position.

    One wonders if this could be adopted in something analogous to a Tomlin order: perhaps you could have a general order on contact and a detailed schedule which describes how the parties intend to implement it. In event of breach a judge can look at it & consider the nature of the breach having regard to his order (or the consent order) and the parties’ framework for implementing it.

    Or it could be a total distaster…

  11. The plans I help create are not long and not detailed, but they are specific. I’d reckon to get it on two pages of A4.

    Pick up and drop off points and times (whenever possible before or after school)
    Term time (4 ten week terms here)
    Two week holidays (3 of those)
    Long Xmas holidays
    Xmas Day
    Kids birthday
    Mother / fathers day

  12. I remember agreeing an order on behalf of a father. He was to have one weekend a month, and the hours of pick-up and drop-off were defined. Every month the mother was to nominate a weekend for the next month but one – if she did not, he could, in the first two weeks of the next month. We even agreed that a weekend when Sunday was the first was to count as the old month.

    It worked for two months until she told him that the only weekend when the boy (then six) had been free her mother wanted him on the Saturday, and could she “owe him a month”? I advised my client to nominate that as his weekend and tell her that if she did not agree they would meet in court. She backed down and agreed to disappoint her mother (as my client put it to me, damn the woman, she’s only his grandma, I’m his bloody father.)

    And last year I met the father socially, thirty years on, and he told me that after that it had gone well; once it was established they had “lent” each other weekends and eventually of course the boy made his own arrangements with my client and his mother.

    It can be done!

  13. Lucy: I’m mightily impressed that you have followers in NZ! I am also quite impressed that you mistook my policeman’s name for kisses in your PS..and plenty of cracks that come to mind..but in this world of social media where so much gets misinterpreted..I better say nowt!
    I am aware that the various sanctions against breaking of CO’s are in place..I was not aware though that the court can’t use these sanctions to impose it’s own orders unless the NRP applies for it? Can you confirm that is the case; because if so it is an important piece of info to get around our network..I’m sure others don’t know this…and it surprises me?!
    My understanding of why these sanctions are rarely if ever imposed is because –with community service for example, there is not the money or people to police the work. Also that there is no consistency around the country regarding imposition of penalties..a few judges do; but most are not robust enough and don’ rather than doing something they do nothing-which is why the ONLY recourse left to the NRP is to bring the case back to court..again…and if he has the will and resources..again. It would be considerably better both for the NRP and for the massively overburdened judicial system if judges would be uniformly robust when THEIR own orders are broken/ignored and got the message across that there would be severe consequences when their orders are broken. There would soon be far fewer repeat cases. I think I have told you the story before of a senior UK Judge who visited Texas a few years back and was astonished to learn from his Texas colleague that his ‘revisited’ cases was only 4%! This was because their prisons were full on Monday mornings with RP’s who had broken orders and they were let out as soon as they agreed to comply..most had gone by Wednesday. It took three months for the penny to drop. Result: This Judge’s orders were always obeyed!
    Re our NZ friend: From my knowledge of the details in CO’s..admittedly from a few years back;- is that the points he drew attention to are in fact covered by most of our CO’s.

    • Anthony,
      Section 11J CA 1989 subsection (5) : “The court may make an enforcement order in relation to the contact order only on the application of – (a) the person who is, for the purposes of the contact order, the person with whom the child concerned lives or is to live; (b) the person whose contact with the child concerned is provided for in the contact order; (c) any individual subject to a condition under s11(7)(b) or a contact activity condition imposed by the contact order; or (d) the child concerned.”
      A child must have leave.
      An application must be made on C79 (see CPR).
      Contrast with s8 powers which under s10 can be exercised in any family proceedings in which a question arises with respect to the welfare of any child if..

  14. Lucy,
    Have just read again NZ Ken’s comment re enforcement there. What is to stop our Judges adding an addendum to a once broken CO that the next time it happens he authorises police or SS to enforce contact? Sure there would be a massive backlash from the usual suspects and a screaming media in some quarters in the short term; but then it would all settle down as these things do and the penny would drop across society that Family Court Judges meant what they said. The answer i fear is that too few have the balls to grasp the nettle!

    • Anthony,
      Nothing at all. APART FROM THE LAW. The judges here have no power to enforce via police or social services. They have no power to order police to do anything, and can only order social services to do something set out in the act, eg, to write a s7 or s37 report.
      If a judge made such an order it would be unlawful.
      It’s not a lack of balls (although female judges may lack those), it’s a lack of jurisdiction because parliament has given them no such power.
      Getting slightly concerned about what dads at FNF meetings ARE being advised the law is!

  15. Lucy: Many thanks for your quick response. Re second response: Thanks for clarifying-helpful. I will cast no more aspersions on their Honour’s ‘balls’! Don’t get concerned- these are (largely) my views and i am responsible for them. Re your first response: Need some time to verify ‘stuff’-will respond next week.
    Have a good w/e!

  16. We’re obviously slightly better off here in NZ when it comes the the issue of ‘warrants to enforce contacts’ and the powers that they confer.
    Here they state that the warrant may be presented to a social worker or the police and if neccesary force may be used to uplift the child. In practice the court offical contacts social services who arrange for the rest to happen.
    In my experience it usually only takes one warrant for contact to continue to occur after that.

    Ref Andrew’s comments
    ‘I remember agreeing an order on behalf of a father. He was to have one weekend a month, and the hours of pick-up and drop-off were defined. Every month the mother was to nominate a weekend for the next month but one – if she did not, he could, in the first two weeks of the next month. We even agreed that a weekend when Sunday was the first was to count as the old month.’

    A way to define this better this would be to nominate a default weekend ie the father shall have the child on the first weekend of each month.

    • There are some powers under the children act to get a constable to retrieve a child but this is where a child is wrongfully retained in breach of an order rather than in cases of breach of contact.
      and of course the high court may use the tipstaff to enforce its orders, but again usually only used in cases of internal or international abduction.

  17. Lucy,
    Herewith comment from a very frustrated Grandmother on our forum (so not an angry father!) Jenny has totally ‘lost’ her 16yo Grand-daughter through her son losing out. Judges will not impose the threats they use even when an App for Enforcement is made: see below. Everyone knows this..the system is not working. Us the public have lost faith in the Family Courts and lost respect for the Judges. What is to be done??

    “This, in essence is unfortunately my own experience and it would appear everyone else’s on this forum. Tough words meted out by judges and orders upheld with threats of further action… but action is never forthcoming and those found guilty know there is no punishment so they continue.

    They continue to deceive the court, people say to you: ‘surely they’re in contempt’. But as we all know they show complete and utter contempt and courts somehow avoid punishment. More strong words but no action.”


    On 19/04/2013 14:50, Jen wrote:

    On the forum today:-

    “Don’t get your hopes up with regard enforcement and punishments. It took me 8 years to get my first enforcement and even then it is suspended six months.”

    • Anthony, Neither of those e.g.s says and application for enforcement of the kind we were discussing has been made. BTW 8 years ago enforcement orders of the kind we were discussing were not available, and committal orders (which is what I guess is being discussed on the forum) are very often suspended first time round, because the purpose is primarily to ensure compliance rather than to punish.

  18. Ken/NZ wrote: ‘In my experience it usually only takes one warrant for contact to continue to occur after that.’.
    Exactly!! Judges just don’t ‘get it’. Treat offenders with kid gloves and you have a festering problem over the last 40 years. Be robust and resolute and you will crack the problem. Is there no-one in the Judiciary who understands this and has the courage to implement it? Apparently not!

    • Anthony, suggest you go back and read previous comments about the fact that judges in this jurisdiction simply do not have the powers that you are asking them to exercise. Judges cannot go around locking people up and effectively meting out quasi-criminal sanctions without proper legal basis. They do have some powers, which are often difficult to exercise on the facts of a case – and there is a perfectly legitimate argument for saying they are too ready to back off the exercise of those powers – but they simply cannot issue warrants or order the police or social workers to come and arrest someone in the way has been suggested. It may be that your argument should be with the lawmakers (Parliament / Government) rather than with the judges, who just implement the law.

  19. Lucy,
    No..I am not talking about prison..we have put that one to bed already..noone wants doesn’t work for reasons already gone into.
    I am talking about the ‘other sanctions’- whatever they are.
    The central point is that Judges treat contempt of their own Court Orders plus false allegations (when proven as having no foundation) with kid gloves..essentially doing nothing. In some cases it may be that the court gravy train is too lucrative to cut off- but most folk now accept i think that the whole system is creaking through overuse and repeat cases. Unless we- the court users learn that a Family Court Judge means exactly what he says…and what he says WILL be implemented the very next time the case appears in front of him; this massive problem (a problem i guess as much for the judiciary as for us the public) is never going to go away.
    Robust and courageous action against wilful ignoring/breaking of CO’s = problem solved.
    Otherwise, whatever the FJR finally passes into law will just mean another 30 years of the same for our children’s relationships.
    And I’m sorry to see your last sentence from you: That is a cop out..and you know it’s a cop out! You have already told me that the sanctions are in place- all that is needed is for some brave Judges to start using them robustly and consistently. (So that more timid ones pluck up the courage and follow suit.) At present there is FAR too much inconsistency around the country.

    • OK. *deep breath*
      The penalty for CONTEMPT OF COURT is prison or fine. The judge has no power to commit a contemnor to prison in the absence of an application from a party.
      An ENFORCEMENT ORDER is something created by statute through an amendment to the children act in 2006. It includes a power to make an unpaid work order, a financial compensation order in cases of proven breach (criminal standard) where there is no reasonable excuse defence made out. The judge has no power to make an enforcement order in the absence of an application from a party.
      An enforcement order is the only “other sanction” bar a change of residence.
      There is no power to make up other creative sanctions that are not provided for in statute.
      The first step if one wants to remedy a breach is to make an application for enforcement, through enforcement order or committal application. My original point was that often that does not happen, and in those circumstances the blame cannot be laid at the door of the court.
      Where it does happen there may or may not be an argument for saying judges are too reluctant to make orders, or that application is inconsistent – but that was not the discussion we were having.
      You suggest my last sentence was a cop out – I assume you are referring to me saying that there are limits on the powers available to judges to enforce, and complaints should be addressed to parliament if they are too restricted. I hope that the above illustrates that they are limited – a judge does not have a power generally to enforce by whatever method she wants. She has the power to enforce as set out in statute only. AND, as I’ve said now several times – most of the powers are not available of the courts own motion. The courts are in the hands of the litigants to bring the correct application.

  20. Lucy,
    *Big sigh*! I am well aware of all you said we seem to be misunderstanding each other. You said:
    ‘There is no power to make up other creative sanctions that are not provided for in statute.
    The first step if one wants to remedy a breach is to make an application for enforcement, through enforcement order or committal application. My original point was that often that does not happen, and in those circumstances the blame cannot be laid at the door of the court. (**Totally agree)
    Where it does happen there may or may not be a reluctance to make orders, or that application is inconsistent – but that was not the discussion we were having.’

    It is precisely the discussion I thought we were having!!
    When an enforcement application is made, Judges are reluctant to enforce or take so long about it they might as well not bother. Have heard of a case today where the NRP made 16 applictions- yes that’s right SIXTEEN; before the judge would enforce. What burden do you think that imposed on all the parties in terms of time/stress/money etc?

    Cop out: I have heard so many times over the years the judiciary say when asked a difficult Qn:’It’s down to parliament to change the law’. You ask the politicians and they say: ‘It’s down to the judiciary- they have the powers’. Result: nothing changes!!
    I do hope this clarifies my pow!

    • Anthony
      Sorry if we are crossing wires. Not ACTUALLY trying to cause an argument…
      Not wishing to cop out (again) but other than saying 16 applications sounds like a lot and in my experience would be unusual, I can’t really give much of a view about a single case I know nothing about.
      On the original cop out I was simply referring to earlier comments by someone (possibly not you – difficult to keep track of who has said what) that a judge should just send the police out to arrest someone or something when in fact the law doesn’t permit it. I’m not suggesting that Parliament is the answer in relation to existing powers of enforcement, just that if we want judges to exercise wider powers those powers need first to be created by Parliament.
      I’ve already said that there is an argument for saying that some judges do not exercise their enforcement powers often enough – but I do think it is a difficult area where it is often not appropriate, practical or proportionate to send someone to prison or make an enforcement order – for a myriad of reasons – and I don’t know whether your 16 applications case is one such case.
      We may not be disagreeing about much, other than the fact that I’m not going to express a view about individual cases.

  21. Oh- And if an application was made for ‘Contempt of Court’ you think the Judge would even consider it..cos i don’t! Do you know of ANY cases of Contempt of Court in the Family Courts-that succeeded; because I have never heard of one?!

    • I can recall one case I dealt with where a parent was committed for breach of a contact order many years ago – but in that case it was the father who failed to return at the end of contact. And as it happened I successfully appealed the order on technical grounds. I can’t recall one where a mother / resident parent has been potted. Most of my committal experience dates from when I was a baby junior dealing with breaches of old style non-mols.

      The Elizabeth Watson / Vicky Haigh case of course involved a committal of mother / her supporter BUT the facts were unusual and the contempt in question was not breach of a contact order, although it was arising from a mother’s hostility to a father’s relationship with the child.

      I haven’t done a systematic trawl but I can’t immediately think of other reported cases that have involved committal. That is not to say such an order has never been made. I would guess they are made – but rarely and for short periods.

  22. I’m not sure how this scenario would work in the UK but here’s a timeline of an NZ application for a warrant to enforce contact.
    07:30am contact denied
    09:00am application for warrant filed.
    10:00am warrant granted by judge
    11:00am meeting set up between social services and applicant.
    11:15am social worker calls parent in breach.
    11:18am social worker informs parent in breach she will call again in 5 min when she has calmed down.
    11:25am social worker calls again and explains the situation informs parent in breach that unless her instructions are followed she will arrive with police, uplift the child and you will be arrested.’
    12:30pm child arrives at parent who’d been denied contact. Denying parent has a mark against court record.
    Denying parent has not denied contact again (7 years ago).

    • Holy cr*p.
      Good to see the wheels of justice move fast – but what happens if child is screaming hysterical etc, unwell etc or there is some other legitimate reason for breach?
      And : who the hell orders contact to start at 7.30am???

  23. Northern Lights

    Lucy, this may be of interest:Burgess v Stokes [2009] EWCA Civ 548

    Per Ward LJ:
    “The days are long gone when mothers can assume that their role as carers of children protects them from being sentenced to immediate terms of imprisonment for clear, repeated and deliberate breaches of contact orders.”

  24. Northern Lights

    Can’t find a citation for this Scottish case (also from 2009) but this article is from The Scotsman. …

    Published Date: 06 June 2009
    A MOTHER has been jailed for three months and warned she could face longer in prison for repeatedly obstructing contact between her former partner and their daughter.

    Tina Monem, 26, was held to be in contempt of court by a sheriff but was released after a couple of days pending an appeal against the three-month sentence, which she claimed was “harsh and oppressive”.

    Her challenge was rejected by three judges in the Court of Session, who said Ms Monem tried the sheriff’s patience “beyond endurance”. They ordered her return to jail to complete the sentence.

    However, they made a finding against Ms Monem that she had committed contempt before them too, and she will be sentenced for that in due course.

    Lord Gill, the Lord Justice-Clerk, who headed the appeal court, said: “If we were to pass sentence for that contempt now, the sentence might be severe.

    “I think that we should give her the opportunity to reflect on the gravity of her conduct and to desist from it. I therefore propose that we should defer sentence for the contempt of this court for six months.”

    Ms Monem’s battle with her ex-partner over their seven-year-old child was heard by Sheriff Richard Davidson in Dundee. The partner was granted six hours’ contact a week, but it did not take place and Ms Monem made allegations against the partner, which were checked but found to be unsubstantiated.

    Sheriff Davidson held Ms Monem, from Carnoustie, Angus, to be in contempt of court for failing to obey the orders for contact.

    • Question : are there material differences in this area of scottish law that impact on the relevance of this? (not a rhetorical question, I don’t know the answer)

  25. A screaming child or an unwell child isn’t a legitimate reason for contact not to happen.

    In the case described above the child was preschool (3) and the mother was staring work at 8am.

  26. Northern Lights

    Lucy, I don’t know if she was finally committed as it was remitted for rehearing once a report from the prison had been received regarding their ability to accommodate a breast feeding mother.
    There was also the suggestion from the LJ’s that her conduct pending the rehearing might colour the outcome.

    As regards the Scottish case, I really don’t know how the law in relation to contempt/committal differs there? I have a hard enough time with their legal jargon.

    As a general point, I would hazard a guess that neither recalcitrant breached a contact order again.

  27. Lucy,
    As you know..Scottish FL is very different from English i guess the answer to your Qn to NL is YES.
    Generally..I agree with you.. I don’t think there is much disagreement between us. You clearly have to protect your profession while I as i user can say what i like! I like your turn of phrase..’there might be a case for’! (Thank God for freedom of speech- I watch Al Jazeira English a lot and am beginning to appreciate just how lucky we are in that regard!)

    • Anthony – I don’t HAVE TO protect my profession – I say what I think. And that is sometimes critical of my profession, of the judiciary and of others.

  28. Hi NZ Ken,
    I wd agree with Lucy’s expletive- but mine wd be Blimey!! That procedure..even if it took place..which wouldn’t as things stand..would take weeks..maybe months..meanwhile the child wd not be seeing the Non Res parent. I guess this has a lot to do with the NZ population being 4.5m Google informs me! We have near 65m and rising.
    I also agree with Lucy that the RP (Mum) can come up with endless excuses as to why the child didn’t make the contact..many of which are very hard to disprove (child sick?)
    I think here the way forward is not to ‘uplift’ children..I can see that being very traumatic for the child. The way forward should be to make the RP RESPONSIBLE for ensuring that contact does work (Whoever the child lives with has power & control)-they far too often abrogate their responsibility to ensure their child has a full life with both parents. The way you do that (if they refuse or don’t understand that all research shows that is what is best for their son or daughter; is to get her/him back to court and impose sanctions immediately. This way the recalcitrant parent suffers and not the child.
    As a caveat: in particularly recalcitrant cases reversal of Residence should be considered far more widely than it is now. Again: a real and present threat would in most cases make the RP back down and row in with the CO so as not to lose the child.
    Why can’t we human’s learn: In every form of human endeavour..including Family Law; appeasement does not work!!!


    Above is the link to our FNF submission to the Public Bill Committee on the Parliament website for the Children & Families Bill. I would urge you to find the time to read it..and anyone else on here. I think u will be surprised how well argued and balanced it is. As a flavour and for those who don’t have the time; I c&p a couple of paras below- but u really need to read the whole thing. Perception: of the public to the judiciary is key.

    2.4. An argument made against legislation in this area has been that there is no evidence of bias against ‘non-resident’ parents in the family justice system, and that judges already give great consideration to the continued involvement of both parents in a child’s life wherever possible. It is also very clear though that this is not how parents and the wider public perceive the family justice system and their experiences. A recent survey for the Channel 4 Dispatches programme Sharing Mum and Dad found that 84% of respondents believed that the family justice system favours mothers over fathers, and 88% believed that the law needs updating with regards to parental separation [1] . This reflects wider societal changes to the way society perceives the role of both parents; research carried out by YouGov in June 2012 found that 95% of Britons agree that both parents should share responsibility for bringing up children, and 86% agreed that the role of fathers has changed drastically over the past 50 years [2] .

    2.5. We believe that these survey results reflect reality, judging by our long experience as a charity. Since 1974, Families Need Fathers have been helping parents – usually fathers, but an increasing number of mothers and grandparents – who feel that the law has prevented the degree of involvement that is best for their children.

    2.6. It is not enough for a justice system to be fair in the way it reaches decisions and outcomes; it is crucial that it is also seen to be fair by the public it serves. Regardless of whether or not courts currently give due consideration to the benefits of a continued relationship with both parents, the lack of transparency and clarity as to how this is considered or applied merely serves to breed discontent and erode confidence in the system as a whole. Our members report to us that it is all too common for a resident parent to threaten that the non-resident parent will have to take them to court,(**in order to get any contact ARE) in the belief that a court-order will only provide for limited contact (particularly if, as is currently common, legal proceedings take months or years to resolve)(**correct ARE)

    4.4. Whilst legislation continues not to clearly recognise the responsibility of both parents to contribute to their children’s continued wellbeing, this perception will be impossible to change. It will merely continue to encourage parents to play out their hostility through litigation in the hope of ‘getting one over’ their former partner, at the expense of the best interests of the children. This would inevitably limit the efficacy of dispute resolution services such as mediation, as there is otherwise little impetus for parents in intractable disputes, or a parent determined to force their former partner out of their child’s life, to engage constructively with these services.

    4.7. It is the perception of whether the law is equitable that is of most importance when we consider whether reform is necessary or desirable. The success of the wider suite of reforms aimed at increasing out-of-court resolutions to disputes will hinge on whether the foundations of the system are perceived to be fair. The parental involvement clause is a crucial first step in achieving this.
    For clarity ARE are my initials.

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