Complex family law case shows the difficulties for litigants in person

This unusual case concerns the father’s application to have contact with his twin children when the mother denied even having ever been pregnant. There were nine court hearings, between November 2023 and May 2024, to establish whether or not there was a child or children. At the end of the ‘fact finding,’ Mrs Justice Arbuthnot concluded that there was a least one child. The father represented himself throughout. The mother had lawyers, including 2 KCs, until March 2024 and represented herself at the last two hearings. A total of 15 days of court time have been taken up so far, without even including the judge’s time in preparing her judgment. The case is not finished; there now have to be directions and further hearings to address the father’s actual application, which is to spend time with his child/children. If the father obtains an order to spend time with his child, he will still be back before the court if the mother does not comply with the order.

In the conclusion to her judgment, Mrs Justice Arbuthnot said “I am struck again by the difficulties that a Family Court has in fully understanding and exploring a set of facts in a case when there are no legal representatives. The Family Court cannot act as an investigator. There was evidence in these proceedings that may well, had it been explored appropriately, have led to a different conclusion”. Nevertheless, the judge managed to handle the case by reviewing extensive documentation, recordings and oral evidence.

Missed opportunities

In this case there was a significant amount of evidence that the child(ren) were with the mother’s brothers. Without legal representation, crucial information was either underexplored or missed. Medical records indicated no evidence of pregnancy, yet testimonies and recordings implied otherwise. A critical point, whether the alleged twins were with the wife’s brothers, was not fully explored because the husband did not summon them as witnesses. This lack of formal legal structure left both parties struggling to present their cases effectively.

Why did the father not summon the brothers to give evidence, where they could have been cross-examined on this? It seems likely that if the father had been legally represented throughout, steps would have been taken at an early stage to locate the children. There was significant witness evidence of the children’s existence, or at least a pregnancy. The father has overcome the first hurdle, in that the court has ruled that there is a child or children, but it seems he still has a mountain to climb to be able to spend time with them. The mother’s evidence, change of stance and acknowledged lies, show that it is very unlikely she will now accept that the father can have contact.

The family court is not able to consider what further evidence would assist the case. The court can only deal with the evidence put before it. It seems from the judgment that the father may have put pressure on the mother and that was her explanation as to the lies she told about the existence of the children for a period of time. However, the mother is still saying there are no children. How is the father going to have contact unless the children’s whereabouts can be established.

Transparency

The decision, in this case, to publish an anonymised judgment is helpful to practitioners but also to the public. The legal system is often criticised, with only selective information shared in the press or through social media.

This should now improve as we have the benefit of the Transparency Principle. The Transparency Reporting Pilot was launched on 30 January 2023. The aim was that a number of designated courts would admit accredited journalists and legal bloggers (i.e. duly authorised lawyers for the purposes of the Family Procedure Rules 2010 r27.11) to be allowed to sit in court and report on what they see and hear. A list of nominated courts was compiled to ‘road test’ the pilot. The number of courts involved has now been widened.

It is still a decision for the judge as to whether or not to make a Transparency Order, but it is expected that it will be permitted unless there are cogent reasons not to. It is also possible for the judge to make further restrictions to ensure anonymity for the children, if for example mentioning the occupation of a parent might identify them (and thereby the child) because of the unusual nature of the occupation.

It is hoped that greater transparency will lead to government discussions on improvements, and careful consideration of the cost benefits of advice and representation for litigants in person. Legal Aid has very limited availability. But are the historic government cuts to Legal Aid causing a significant increase in court costs and, essentially, just moving the costs elsewhere?

The need for reform

This case highlights the need for reform where there are litigants in person. The number of litigants in person is growing, mainly fuelled by reasons of cost. It appears that the lack of legal representation in this case has prolonged it, but also that it does not end here. The case has not ended. There is a need for reform in how family courts manage self-represented litigants. The court has to be the neutral adjudicator and cannot make suggestions (which are likely to be clearly obvious to the judge) of steps that should be taken, because any steps are likely to be more helpful to one party than the other.

It is becoming more and more usual for cases to have one side as a litigant in person. Sometimes they start off with a solicitor, but can no longer afford the cost. For a solicitor representing the other party, this can be an easier situation as the unrepresented party has had legal advice. If there have been other hearings, they are then not surprised by the process that is being progressed by their ex’s solicitor. Where a party has been unrepresented throughout a significant difficulty is the burden, especially of increased costs, it puts on the represented party. Regardless of who is the applicant, the court will direct that the represented party’s solicitor does all the preparation work related to the court bundles for each hearing. Sometimes the represented party has even less financial resources, but they may be vulnerable and feel controlled by the other party and, therefore, are less able to manage without a solicitor. There can be a significant amount of additional correspondence when the litigant in person queries or challenges communications from a solicitor. There can also often be a ‘no holds barred’ approach too, with the remaining solicitor being on the receiving end of insulting and accusatory communications, which can be at all hours of the day or night. This can take quite a toll on the solicitor. It would help if litigants in person could have some access to legal advice at the beginning and at other critical stages of the court process.

In cases relating to children, it is easy for a litigant in person to feel that they can represent themselves. It is also a credit to our system that legal representation is not a requirement. However, it disregards the fact that the many years of training undergone by a lawyer actually does make a real difference. Nobody suggests that to avoid a waiting list for an operation a patient should perform it themselves. The skills of the doctors are understood. The skills of the lawyers could be the focus of providing access to legal advice and representation, as the burden of assisting litigants often shifts to the judge.

Mediation is often suggested as a solution in family disputes. It is very disheartening to family lawyers when it is either said or implied by those in the legal world that a matter could have settled if only the parties had gone to mediation. Most family lawyers work very hard to settle matters and this was recently mentioned by Baroness Hale in an interview with Oluwapelumi Adeola. A mediator has to remain neutral and has no powers to compel or require any steps. Mediation would have been extremely unlikely to have been effective. The complexity of the case is reflected in the judgment, which runs to 71 pages, showing the depth and complexity of the issues involved. This is a complex case and the difficulties within it will likely continue into the next stage of the process.