Legal Aid Withdrawal: How to Represent Yourself

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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:

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(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:

1. The Family Court
2. The High Court

• Lay bench
• District Judge
• Circuit Judge
• High Court Judge

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(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.

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