Family courts 'are not a talking shop', Ryder LJ says

The family courts are "not a talking shop" and its rules, practice directions and forensic directions are there for a purpose, Lord Justice Ryder has said.

Giving judgment in Re C (A Child) [2013] EWCA Civ 1412, he said that where a dispute was "not immediately susceptible of conciliation or out of court mediation, it will require a lawyer's analysis".

Ryder LJ went on: "This is after all a court of law. In the absence of lawyers, the judge has to do that and to do that without assistance and sometimes with quite vocal hindrance.

"That requires more time than in a circumstance where the lawyers can be required to apply the rules and practice directions, produce the witness statements, summaries, analyses and schedules, obtain instructions and protect their lay client's interests.

"Where a court is faced with litigants in person the judge has to do all that while maintaining both the reality and perception of fairness and due process.

"I do not criticise any of the judges involved in this case. Each was handed a case about which he or she knew nothing and given time only to deal with the most pressing issue or two that had arisen. That was firefighting, it may even have been quality firefighting, but it was not case management."

The lord justice said that, in "less fraught" cases, there was often a "real opportunity for dispute resolution" at the hearing where the welfare report from Cafcass was first available.

"At the hearing and given that it would have been clear whether the key issues included the need to make findings of fact, the judge can control the process to ensure that it is fair," Ryder LJ said.

"Having been sworn, each party can be asked to set out their proposals and to confirm their version of the disputed key facts. They can then be asked by the judge what questions they would like to ask of the other party.

"Where lawyers are not instructed the judge can then assimilate the issues identified into his or her own questions and ask each party the questions that the judge thinks are relevant to the key issues in the case.

"It may be appropriate to give the parties the opportunity to give a short reply. In that way the issues can be proportionately and fairly considered."

Ryder said the problems which had complicated the case in Re C were "hopefully rare", and the solution was to use the processes of the court to better effect.

"The family court is a court of law not a talking shop. No matter how much its judges will strive to obtain safe agreements between the parties, its rules, practice directions and forensic protections are for a purpose - to do right by all manner of persons, without fear or favour, affection or ill will."

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