Understanding the litigant in person

It was a cold, wet Sunday evening, many years ago, as I popped into the local convenience store. Outside, a car was parked up and a man was putting a little boy, around five years old, in the back seat. A slightly older girl was already in her place. Slowly he stood upright, blew two kisses, closed the door, and, as the car pulled away, walked off with stooped shoulders. Weekend contact over.

I was in practice at the time, handling many children disputes, but until then they were just a case file among many; professional objectivity prevented an emotional engagement. I did not let my guard drop, but seeing that dad say goodbye, probably for another two weeks, brought home how those that, then, I acted for or against, and now adjudicate upon, are affected by what we say and do.

Having emotional, warring parents without representation is a challenge we now face with increasingly regularity, for obvious reasons, and trying to weave a way through the entrenched positions, venom, and lack of respect one has for the other can be difficult. There are, however, many cases where we face the perceived imbalance of one party being unrepresented.

The judiciary often faces criticism from the unrepresented for listening too closely to the clever lawyer; they complain that we are part of the same “club”, and that there can’t be fairness in the system. We also face criticism from the represented for bending over backwards, being too lenient to the poor litigant in person: why should they get away with not complying with orders in time, or at times at all, to file or serve statements or evidence?

When it comes to facing LiPs in Children Act matters, whether as a judge or an advocate, we should try to understand the emotions being faced. Of course there are the rotten apples and the ones that are the authors of their own situations by stupid, arrogant, and, sadly, violent behaviour. But there are also many who are victims only of the breakdown of the adult relationship, for whatever reason.

I am not suggesting there needs to be a touchy-feely approach, but simply an acknowledgment that where children are concerned the emotional turmoil is far greater than with any other type of case we act in or preside over.

An all-guns-blazing, “my client is absolutely right” approach does not assist either the court or the parties themselves – and it certainly, in the majority of circumstances, does not help the children. That approach is divisive and serves only to polarise further the attitudes that parents bring to children-based conflicts.

Sadly, we still see advocates looking to score points off LiPs, or running a crusade on behalf of their clients, seeking only to discredit the other party without addressing the spirit of the Children Act.

Taking stock of what is before the court and how to speak to the LiP is vital to ensure effective hearings. It is also frustrating to have parties called into court only to be told by the advocate that the LiP has refused to talk to them, so no progress has been made.

On a typical dispute resolution appointment day, this may be after some time spent waiting to come in. It would be far more appropriate for the advocate, at the point they are snubbed, to ask to see the judge immediately. On almost every occasion when I am faced with that scenario, and I explain to the LiP the role of the advocate, their duties as an officer of the court, discussions are kick-started.

Understandably, and for all the reasons alluded to above, the unrepresented party starts the day viewing the professional as the enemy. It is no wonder they are initially wary or intimidated at the thought of engaging in discussion.

Put yourself in the position of the court user and not the professional. Think how you would feel “unprotected”, fighting for something you feel passionate about, in a strange, cold environment. An esteemed colleague of mine has recounted how, some years back, he found himself in such a position. Save for being used to the environment, he gained, through unfortunate circumstance, a real understanding of the thought processes of the unrepresented in family cases, where their only crime is to have fallen out with their former partner.

Not for one moment do I suggest the strength of your clients’ case should not be advanced in the best way possible, but look at what the end result may be, advise accordingly, and conduct yourself with others as you would hope to be dealt with if in that same position.I would not want to end on a negative note, as I am generally more a glass half full than half empty sort. There are some very good practitioners who understand the nuances of these disputes and are guaranteed to present constructive ways forward and act with appropriate civility to the unrepresented party. To them, on behalf of myself and my colleagues, I thank you.

District Judge Howard Kemp sits at the Family Court at Romford

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