A few changes in family law have recently taken place or are imminent. We thought you'd like to know the details so we've asked Celia Conrad a former specialist family solicitor and author of Fathers Matter - the essential guide to contact on separation and divorce - to cover it in a guest blog for us.
The term LIP or should I say litigant in person is used to describe an individual who exercises his/her right to conduct legal proceedings on his/her own behalf. In other words self-representation, although (according to Lord Dyson's Practice Direction of March 2013) the correct terminology continues to be litigant in person rather than self-represented litigant!
Withdrawal of Public Funding for Children Applications
Many parties, particularly fathers, have had no choice other than to become litigants in person after the withdrawal of public funding for the majority of private law children applications. This is a direct consequence of:
(1) The controversial Legal Aid, Sentencing and Punishment of Offenders Act 2012 which came into force on 1 April 2013
(2) The ever-increasing cost of legal fees, many parties start off with legal representation but end up as litigants in person due to prohibitive legal costs
The emphasis is to keep parties out of the courts and, since the Family Justice Review in 2011, the Government has been focusing on funding dispute resolution services such as mediation. The aim is to direct parties in private law cases to mediation rather than funding them to proceed to court. Despite all the funding for mediation however, there is no guarantee that it will work. So if a case does proceed to court, the likelihood is that at least one of the parties will be a litigant in person whom the courts will have to accommodate.
Of course with the abundance of free information on the Internet and websites such as this one, more and more parties have made a conscious decision to act as litigants in person.
Using a McKenzie Friend
Sometimes parties act alone and sometimes with the 'right to reasonable assistance' of a McKenzie Friend. There is a presumption in favour of allowing a McKenzie friend to sit in on court proceedings so as to be able to provide that reasonable assistance. This ties in with Article 6 of the European Convention on Human Rights, which directs that "those who need assistance with the presentation of their case" should receive it.
Assistance means offering moral support, taking notes, helping with case papers and quietly giving advice on any aspect of the conduct of the case. But assistance does not extend to conducting litigation or acting as an advocate - and McKenzie Friends do not have a right to audience in court, unlike solicitors and barristers.
In exceptional cases, where a litigant in person is inarticulate or has severe health problems and is unable to present the case, some judges have allowed McKenzie Friends to address the court directly. The latest guidance in relation to McKenzie Friends is set out in a 2010 Practice Direction.
Equal Treatment is an Entitlement
The fact is that litigants in person often feel overwhelmed by the court process especially where the other party has legal representation. Litigants in person MUST be treated equally before the law and have equal access to justice. Judges have a duty to ensure a fair trial by giving them due assistance to achieve this. But that duty does not extend to giving legal advice. Nor can a judge be seen to favour one party over another, even if that party is a litigant in person.
Litigants in person should bear in mind that a judge's role is to determine both the facts of the case and the law applicable to those facts and presenting a case involving difficult points of law is no easy task for lawyers with many years experience, let alone a litigant in person. Which is why it is expected that with the increasing numbers of litigants in person, judges will need to be exceptionally proactive in managing cases where litigants in person are involved, particularly where the other party has legal representation, to ensure that the litigant in person is not disadvantaged in the proceedings.
There are some significant and imminent changes to family law with which litigants in person will need to familiarise themselves:
(1) Single Family Court for England & Wales
The 22nd April 2014 was a key date in the family law calendar. On that date there a new Single Family Court for England & Wales came in to being. There are actually two tiers of court:
The Family Court
The High Court
It was recognised that it was necessary to preserve the High Court's status in relation to its international work and inherent jurisdiction (which includes matter such as wardship) - but there will be four levels of judges:
High Court Judge
The idea is that the creation of a single family court will facilitate the wider reforms being implemented to enable the more efficient use of court resources, and more effective administration of proceedings.
(2)The revised Public Law Outline (PLO)
The revised Public Law Outline will also come into force. In terms of changes it is not significantly different from the PLO from July 2013 but it clearly defines how care applications will be dealt with in the future.
(3)The Child Arrangements Programme
The Private Law Programme, which essentially sets out and governs the procedure in relation to private law applications under the Children Act 1989, will be replaced by the Child Arrangements Programme. The emphasis here is on the needs of the children and ties in with the amendments to the 1989 Act by the Children and Families Act, which received Royal Assent on 13 March 2014 and which among other things:
Makes it a requirement for separating couples (with certain exceptions such as where there has been domestic violence, for example) to attend a meeting to find out about mediation before being permitted to apply to court
Makes it clear to separated parents that the court will take account of the principle that both parents should continue to be involved in their children's lives, the caveat being that it has to be safe and consistent with the child's welfare for that involvement to continue. The presumption that so many parents were seeking did not make it into the statute book!
Ensures that any expert evidence in family proceedings concerning children is to be permitted only when necessary to resolve the case fairly and taking into consideration factors which include the impact on the welfare of the child.
Amended Court Form C100
There will also be an amended Form C100 - this is the form currently used to make an application under the Children Act for a residence, contact, prohibited steps or specific issue section 8 order or to vary or discharge a section 8 order. The Form is to be amended to incorporate the introduction of the new child arrangement order (CAO), which replaces both a residence and contact order and is to be the standard post-separation order. A CAO is defined as an order regulating with whom a child is to live, spend time with or otherwise have contact with. Form C100 will also be amended to incorporate FM1, which is the Family Mediation & Assessment Form.
The crucial question is whether family mediation will divert parties from the courts given the requirement that an applicant will have to meet with a family mediator before filing a court application.
What impact this new reform will have? On the basis that it has already been a requirement since 6 April 2011 that applicants have - needed to 'assess' whether mediation would be a better way of resolving their disputes instead of going to court and have been expected to attend a Mediation & Assessment Meeting (MIAM) to find out if mediation would be right for them - it remains to be seen
What is clear though is that there has been a dramatic increase in the number of litigants in person since public funding dropped off in April 2013 and there are now more litigants in person who represent themselves in private law Children Act applications than in any other area of family law, if my reading of data from the Ministry of Justice (MoJ) is correct!
Celia Conrad is a former specialist family solicitor and author of Fathers Matter - the essential guide to contact on separation and divorce.
This article is for information purposes only. The views expressed by contributing authors are not necessarily the views of the owners of this website and should not be considered as legal advice.
Check out the Separated Dads Forum... It's a great resource where you can ask for advice on topics including Child Access, Maintenance, CAFCASS, Fathers Rights, Court, Behaviour or simply to have a chat with other dads.
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cindybyrd - 21-Dec-22 @ 8:00 AM
I think all kids belong with their mothers fathers are abusive in one way or another and drunks Courts should know this by now So why do women have to fight for their kids it’s bull
Gurrr - 24-May-21 @ 9:34 PM
Hi My problem Started when my husband died and he left and witnessed well and then I find out my Marriageis not valid In the UK but is valid in my Country
I have been two years with my lawyer and basically she didn’t move forward any step Ignis my stepchildren and Igot a child 11 years old and we just waitingmy case very Complicated from so many sides and I don’t know what to do
So so - 9-Apr-20 @ 1:26 AM
I have split up with my girlfriend and after a couple of months i am in a relationship with someone else . My ex has stopped me from seeing my boy she has blocked his phone so I can't talk to him and now I don't know what to do . I can't afford court so I would like to know what my next step should be
Peeky - 18-Jan-20 @ 2:38 PM
My daughter found out she was pregnant after only two months of seeing her bf. They split 7p and few weeks later she found she was pregnant. She had broken off the relationship because she didn5cwant to becwith her bf. He on several occasions told herxhavecan abortion. Baby was born in April and she invited her ex to see the baby with his mother, and he has been to the house at least once a week to see baby. He was also put on the birth cert, since then he has been saying he wants the baby over night and to have him 3 days a week.. my daughter is very upset as she went ahead with the pregnancy, gave up her career for the RAF, and decided to raise her child as a single parent... The lad is only 18 and very immature for his age and the baby still isn't comfortable with him.. he is threatening courts etc and being very unreasonable although he is visiting to see his son... where does my daughter stand??
Ssmtwra - 30-Jun-19 @ 9:20 AM
Yeah I am (disabled I see it now) .and her daughter is (15 )so yeah what is the point (now)bit late in life now to do something about it now) .her (mother is a good mother and would have (done a good job at raising her )better then I could have done in reality .i couldn’t represent myself in court I can’t even get (job )in reality.or even read or write properly I made a shear mess out off my life but really I was never going to amount (nothing ).it is best she stay with her (mother) I couldn’t look after her anyway .i pretty much surrender all (responsibility) I have nothing to other anyway .
Chriso - 12-Apr-19 @ 1:03 AM
I'm still waits for you to get back to me.
Zadr90 - 11-Apr-19 @ 12:26 AM
I'm still waiting. As for about the 9 millionth time of explaining, I CANT REPRESENT MYSELF BECAUSE OF MY DISABILITY!
Zadr90 - 11-Apr-19 @ 12:25 AM
@mum.nah I am not in psychosis I am just( fat out crazy) that has found the (Internet )I was( old shearer) that didn’t even have (internet )and drink and take some drugs yeah( train on beer make you tough attitude like John l Sullivan sleep in charth bag build character).to I found the internet man I was wrong .but I do have that (beggars believe) mate that is (instilled me genetics and upbringing f (Allen) little girl can’t even read and write ha ha.like my nan said look after your (mum) when I am (gone) I gave( my word) on her( death bed) and I will( keep it for her ).because is loved me that women and (I loved her )she was my (mum) and a (mum to many )feed as buy toys for us takes us places on her( little pension) give as a (roof) when things (not good )at home .that there is special and rare .i will keep my word .
Stopitsam - 7-Mar-19 @ 10:18 AM
My ex husband has a longstanding alcohol, opiate and prescription amphetamine addiction. He has been admitted to hospital with drug induced psychosis and rehab before. He can be extremely aggressive and I left because of domestic violence, He has a history of drink-driving, but no convictions.
The intensity of his addictions waxes and wanes.
I am the kids primary carer.He sees them every Wednesday for a few hours after school and alternate weekends. He lives with new partner who is supportive of him.
Our kids primary school had concerns that he was intoxicated having driven in one morning, for drop off. The school phoned first response, who couldn't take it any further as he just denied being drunk.
The hospital wouldn't allow our kid to be discharged home to his care after an overnight episode last week, because they had concerns he had been drinking, but because the child came home with me, they have not followed it up with a first response referral.
I am fearful for my children's safety when in his care as I think he is spiralling out of control again with his drinking.
He loves his children and they love him. I want to normalise my kids life as much as possible and I want them to continue to spend time with him, but how do I proceed so that they are safe??
So far I did not allow contact yesterday afternoon with him, against court order instructions.
Mum - 7-Mar-19 @ 7:12 AM
What forms do I need and where do I apply to represent myself (due to costs) in order to fight for access to my daughter when her mother is stopping me from seeing her?
Fatherinneed - 11-Jan-19 @ 2:07 PM
My wife has left family home with my daughter the house is solely in my name I have paid all bills even though she earned more than me she is forcing me to sell house which will make me homeless even though she has another house which she rents I am on a low income
Brod - 6-Jan-19 @ 11:50 AM
@annoyeddad.mate I haven’t seen my daughter sence she was 5 .so her calling her step father dad (doesn’t bother me one bit and if she wanted to change her name to her mothers new name they have my blessing ).to be honest it’s probably the (right thing to do after the amount off time gone bye) .and it was( my choice )not to go legal and the mother off my child and myself are not on the( same page mentally) her thinking and my thinking are completely different we come from (two different worlds )gods truth .i respect the mother for not wanting child support it’s was the right thing to do because for two years why she lived in my house she was in a relationship with my uncle and others .so if she has settled down and got married that’s great good for her and her kids .after all these years I made the right choice and I am sticking to it .
Chris - 2-Jan-19 @ 11:50 PM
Im not on birth cert.
Girl was 3 days old when registered.
Mum registered without me and I didnt bother for 2 years and 10 months.
I was 22 at the time
Mum was late 30s.
Ive since paid maintenance every month for 3.5 years.
I see my daughter regularly but i do not have parental reaponsibility.
Im now since married in a stable relationship
Mum keeps saying 'we will work towards it'
Mum in a new relationship and the mum has no problem if my daughter calls another man dad.
Im going for mediation
How long does it take from mediation to court?
Mum wants to change daughters surname to her new married name which is the final straw for me.
Annoyeddad - 2-Jan-19 @ 1:16 AM
I have been separated from my son's mother for 5yrs and entered a new relationship...i had an extreme amount of access to my boy for a long time til then.
But since my new relationship I have been scrutinised and insulted aswell as threatened by my child's mother and her family...my access in the week has been stopped and now recently all access until she gets her day in court...my son has been continuously used as a pawn to hurt me as it is well known how much of a bond me and my son have with each other...
His school and support worker have both supported the fact there is no reason for me not to have contact.
I have made my application to court and have received my court date for 1st hearing
I will be representing myself and would like some advice on how to present myself and case in court aswell as what the usual out come for father's is please.
Boywonder - 9-Nov-18 @ 2:22 AM
I'm still waiting for you to get back to me 14 months later. I've made it quite clear that I can't represent myself due to disability, nor can I go through mediation due to that reason, and I can't afford a solicitor, an di can't contact my ex. SO WHAT DO I DO????
Zadr90 - 21-Sep-18 @ 2:19 AM
Hi, I am seperated with my ex girlfriend of 5 nd half years, we been seperated nowfor 8 months now, when we first seperated she blocked me from every means i could see my kids, but later on after so much troubling, i was unblocked and we were on good terms as i try to play by her cards but suddenly she would blocked me again whenever i dont play on her terms, this has been going on for a while now but i cant keep going on like this, she know my current situation in the country that my resident permit has expired which means i cant work to support her with the kids and have explained to her several times that am doing my best get it renew back so i can get back to work and be able to support her, I do try and give her the little i can afford as am not working,when we were on good terms would travel down to scotland and lodge in a hotel spend couple of days with the kids, but becus am not working, this cannot really happen all the time, i told her every 2 months but sometimes i dont even have money feed myself talkless of travelling all d way to scotland to see the kids,I finally got the money for my residential permit and its under processing, The annoying thing she does is that she would take the kids to everymans house whoms she wants to spend the night or weekend with or even invite them to the house and have try correct her towards this but she would never listen, i told her the kids are very young to witness you with different men, you are messing around with the head, my first daughter is 4 and my smallest gal is 1nhalf, my first daughter knows the name of all the guys she has gone to spend the night with them, she even travelled all the way from scotland to leeds on a 5hrs 30mins to spend 2 weeks with a guys with the kids, i was so angry and decide go pick them up from there, they spent few days with to the day she would be heading back, ever since she returned back to scotland, she has refused make me see them, she would read my message and give no reply, she would see my video calls and not pick up, i have begged and cried to please make me see my girls cus its a horrible feeling, i love ma gals to death and i would do anything for them but their mum has deny me every access to them because i cant give her what she wants due to my immigrant status,Its been 3 weeks now that she has not allow me to see them and i dont know what to do as i cant keep living like this,I cant be under her track all the time because even when i give her money she still blocks me and wont make me see them, IMiss my gals allot, Please i need some advice on what to do...
waleadaba - 1-Sep-18 @ 3:19 AM
@AOC123 - You can't personally take an injunction out against an individual because that is up to the courts to decide. If the person who is in your ex's life has not committed any chargeable crime then you cannot apply for one. Otherwise everyone would be applying for injunctions against people they didn't like. Reading between the lines it sounds as though you don't want a man to be around your kids..... but what your ex does and who she chooses to see now you are separated is completely up to her. In other words you can't make judgements on who she chooses to have in her life.
RobC - 31-Jul-18 @ 2:16 PM
My ex had blocked my number for no reason tonight as I found out when trying to contact her regarding my kids. I then called her several times on private number & left 3 voicemails with no reply which is strange for her even when she's telling me I can't see my kids she will still lreply. I know she suffers from depression & has a split personality at the best of times. She has previously told me on numerous occasions that she wants to kill herself. I obviously thought there was something not quite right so I went to the house to see if everything was ok when I found that there was another man there & he starts to threaten me so I have to leave as I do not want that around my kids. He then gets on his moped & chases me whilst I'm driving my car & threatening me through the window. He is obviously not fit enough to be around my kids as he is clearly violent & that is the exact reason why I have pleaded with my ex not to let men around my kids. I called the police to report it & asked them to go to the house to make sure my kids are ok but they refused to so I asked if I can get an injunction against him to prevent him from being around my kids but they didn't really seem interested. Is there a way to get an injunction against him?
AOC123 - 31-Jul-18 @ 1:26 AM
I am applying for contact threw the court and my ex is totally lying threw her back teeth to portray me as aggressive when in fact she has been just as bad with her shouting etc there is no domestic violence but she has somehow got legal aid I have to represent myself but how can a court listen to her lies spoken to court by her solicitor how do they determine the truth I think I am going to have a rough ride and an unfair hearing
Dwbubble - 18-Jun-18 @ 11:36 PM
It’s Christmas! My daughter is now a month and a half old and I’ve seen her for 45 minutes. The finally divorceabsolute came through a month after her birth and my ex is being difficult. I’m not on birth certificate and I’m worried in future it’ll be difficult to see my daughter. Domestic violence was given as her reason but it’s just not true. She wants me to see her on her terms but I need something more legally binding. Any suggestions guys?
Fred - 25-Dec-17 @ 5:58 PM
I cannon get legal aid and cannot afford legal costs so after some advice please.
My wife in August 2015, left abandoned the family home and left me with my 7 year old son. She has not seen him since and some 2 years later. He's now 9 Turned up at his school as she has found out me and him Are moving 45 miles away. Advice please
Parmo - 28-Sep-17 @ 4:48 PM
I'm going through a divorce and my ex is determined to turn the kids against me my eldest 2 want nothing to do with me. My ten year old has supervised phone calls. He is told what he can and can't answer, and if I ask a question that she doesn't like or say something she doesn't like she puts the phone down. This has been as simple as mentioning my new partners name or asking where he went on holiday.
My only crime was that I had a nervous breakdown and made an attempt on my life. I have never hurt any of my family and she has not got any violence or restraining orders. I work with children in a private school. I live with my partner and her 3 children, but she demands that I can see my son but only if her and her father supervise me. Her father has threatened me multiple times and now lives with his daughter in the house I fully paid for and which they changed the locks on.
I'm running out of money. I work part time and I can't afford a barrister. If there is anyone who can assist with my circumstances, or have been unwell and tried to get access to their children please help.
I have a letter off my psychologist to say I am no threat to my son, I have a report from a social worker to say that I am a good dad to my partners kids and I had my home and my parenting assessed.
I am about to go to court and I want to know do I need a barrister, or can I get away with stating my facts myself. I could maybe afford one a couple of times depending on the time frame but I don't think I can manage one for every hearing....when is the best time. She will fight it to the end and I don't think even once through the courts she will comply , but I love my son and he loves me and I have to keep trying
Roadrunner - 15-Sep-17 @ 9:08 PM
Then it sounds like there is nothing i can do about it, due to my aforementioned issues. Just have to accept that i cant do anything about it and try to move on (easier said then done).
Zdr90 - 13-Sep-17 @ 9:39 AM
Hi my partner and his ex separated over 6 years ago (lived together but not married) and she has stopped him having access to his daughter for the last 3 years. He has paid CSA from day one. He took her to court 3 years ago but they dismissed his case saying they needed to go through mediation. He paid for 3 sessions of mediation but she never showed up. He paid nearly £5000 for the first court case so didn't have the money to try again. We are both now trying to get financially stable and get our own house but he can't afford to do this as well as save up to take her to court again. Is there any advice out there about the best option for him to try and get his daughter back. His ex refuses all contact with him so making an arrangement with her is out of the question (for background she ran off with my partners best friend and subsequently got married to him and they have their own child together so she wants to play happy families and doesn't want my partner in the picture)
Bina9 - 31-Aug-17 @ 5:28 PM
I appreciate you getting back to me and the work that PSU do; but unfortunately that's not going to work, due to my condition. I legitimately cannot talk in front of a courtroom of people due to my condition. So I need proper legal representation from a proper solicitor who's gonna talk for me. Thank you.
Zdr90 - 25-Aug-17 @ 4:41 PM
Zdr90 - Your Question:
Can you at least get back to me please? Even just to give me bad news!
If you're attending court without legal representation, you may be able to get some practical non-legal help from the Personal Support Unit (PSU). For example, they help with your paperwork, take you to the right office and sit with you in court, please see link here .