CHILDREN, TRUST AND LITIGANTS IN PERSON 

Published on 30 March, 2023 | Louise Butcher

Just before Christmas, the Ministry of Justice published figures showing that almost 66,000 new cases began in family courts across England and Wales between July and September last year(https://www.gov.uk/government/statistics/family-court-statistics-quarterly-july-to-september-2022/family-court-statistics-quarterly-july-to-september-2022).

Yet, in my opinion, I think that there are relatively few individuals who actually want to go to court.

Court is increasingly regarded as a last resort by the Government, judiciary and family lawyers. There are now many alternative forms of dispute resolution, including mediation or arbitration – all of which are offered by Hall Brown.

Having a succession of hearings can take up a considerable amount of time, no little expense and generate great emotional stress for all concerned.

Furthermore, since the withdrawal of Legal Aid for most such court proceedings in April 2013 (https://www.legislation.gov.uk/ukpga/2012/10/contents/enacted), a growing proportion of those taking part have done so without being represented by family lawyers.

In fact, the proportion of family court participants without representation (known in legal parlance as ‘litigants in person’) has risen from 13 per cent to 39 per cent in the course of the following decade.

I should point, though, that not all individuals representing themselves do so because they might be unable to afford legal fees.

That has been underlined by a court ruling relating to a hearing in July last year which has only been released (https://www.bailii.org/ew/cases/EWHC/Fam/2022/3501.html).

The central matter was an application for child maintenance – something which the judge, Mr Justice Francis, said was “relatively straightforward” in itself.

However, it became what he described as “one of the most shameless pieces of litigation” that he had ever experienced.

Although both the parents involved had spent more than £5.5 million in legal fees, the father had ultimately decided to dispense with his lawyers and ended up representing himself in court.

Despite being “a man of considerable intellectual capacity, of business acumen and financial success”, Mr Justice Francis concluded that he had shown “an almost complete absence of emotional intelligence or understanding”.

The nature of the father’s arguments and the amount of money expended was, concluded the judge, “completely absurd”.

He ordered the father to make annual child maintenance payments of £125,000 plus a lump sum of £150,000 to cover a variety of other expenses now and in the future.

Should the ruling not “put a line under all of this”, Mr Justice Francis added, “there is just going to be misery all round”, including the couple’s seven-year-old son.

His comments provided something of an echo of a much earlier observation by another renowned family judge, Lord Justice Thorpe.

In handing down a notable judgement in 2004, he sought to remind parents caught up in arguments about welfare arrangements for sons or daughters that it was important those children were treated neither as “pawns nor possessions” (https://www.bailii.org/ew/cases/EWCA/Civ/2004/1353.html).

It is true that family law disputes do not solely relate to childcare. Equally, arguments at the heart of cases such as that deliberated on by Mr Justice Francis are not only raised by wealthy parents.

I would still suggest, however, that there are common elements in how I and my colleagues approach cases involving a distinct difference of opinion regardless of financial means or circumstances.

Chief among them is trust.

I tend to believe that the trust of clients is – and should be – earned. That is best done by determining at the very start of a case what their objective is and then working hard to achieve that.

It is imperative to manage expectations and, when necessary and possible, to show flexibility in order to resolve a disagreement. That is especially true, I would say, when the issue involves the well-being of a child.

Whilst parents involved in disputes about childcare arrangements might be focused on the short-term and court proceedings, a failure to appreciate the bigger picture and contribute jointly to a child’s upbringing can impact family relations for many years to come.

Clients appreciate clarity. Sometimes apparent difficulties can be overcome simply by explaining the process and offering straightforward advice as to the best course of action to take.