Into the labyrinth of procedural law
Family breakdown law and the legal system by which it operates are under siege. The circumstances in which this happens – in relation to legal aid – was easily predictable, as Legal Aid Sentencing and Punishment of Offenders Act 2012 drastically reduced the availability of legal aid. The second aspect of the problem the lack of approachability of legal process, and law – has been with society, to its shame, much longer; and for that reason the problem is more insidious.
This article is prompted by the real concern which many lawyers – especially family lawyers – have at the difficulties for litigants in person in the present family breakdown legal process. It is intended to start a debate over the conflict which the legal system faces if legal aid is to remain so reduced; and to look at how law can be democratised and made more approachable. It must happen if the system is not to grind to a halt under its own failures of fairness.
The main deterioration in legal aid availability has been in family proceedings. Save for first instance care proceedings, domestic abuse (subject to what is said below) and a tiny range of other proceedings legal aid had disappeared overnight. And yet those who frame further family breakdown law do little to recognise its increasing impenetrability for judges and for those it is designed to serve (the family litigant and children). Inevitable, individuals who come before the court suffer – at one of the most difficult times in their lives – as legal representation is denied to all but the rich or those who, one way or another, can find the means to pay.
Meanwhile, the legal process remains relentlessly complex. The latest batch of procedural and practice reforms for family proceedings – introduced on 22 April 2014 – bear witness to that. Rules of evidence and of procedure, which many trained lawyers find perplexing, the average lay litigant is likely to find as if in a deep labyrinth. In their efforts to find a way out, with no lawyers to assist them, they will be at the mercy of the judiciary. But how much law, in reality, can the average judge – unaided – hope to assimilate and to apply to each of a massive spectrum of cases. Beset they will be, by civil and (in the case of circuit judges) criminal law (where often they will be helped by legal aid trained lawyers) and a variety of four and more different sets of procedural rules.
The day of the un-‘help’-ed judge – Sir James Munby’s ‘cusp’ of family law history – will have its own dangers, the cusp blunted by the weight of its welter of practice guidance. Many judges have grown up expecting to be able to rely on lawyers to ‘help’ them – ie to tell them what the law is. There is no shame in that; but where there are no lawyers, by definition judges must find out the law for themselves. In the generalist reaches inhabited by circuit and district judges through most of the country, fo them to keep up with and adjudicate fairly upon all areas of law (including criminal law for circuit judges) without help from a specialist profession (outside crime and care proceedings) seems to demand almost super-human feats of assimilation of interminable verbiage.
Clarity in law
The real sticking point in all this is the way that procedural law has developed, especially since 1991 (the post-Children Act 1989 proceedings rules). The drafting of substantive legislation, especially in family law, has improved radically with and since Children Act 1989 (Child Support Act 1991 was a backslide); though much remains to be done. This note is not aimed at substantive law, however. It is aimed at those who draft procedural law. This is the law (to use the term loosely), which guides the common law and substantive law – and the parties and the judges, too – through the court process.
Those who draft these procedural laws and practice guidance have not yet woken up to the fact that many cases will no longer have lawyers; and that judges will be on their own to deal with the whole case alone, with only the parties in their courts. From the evidence of court reports alone, quite apart from anecdotal evidence, judges – even up to the court of appeal – get it wrong; and that, even with lawyers in court to assist them. If that happens in Court of Appeal and High Court reports what is happening all over the country; and when that is multiplied by all the wrongnesses which judges are committing, where is the rule of law and a fair trial then?
Law reform: a matter of good manners?
As a matter of good manners, as well as of human concern to help, you would think that against this background Family Procedure Rules Committee (for rules) and the President of the Family Division (in respect of various and varied practice directions and guidance) might have thought to pay particular regard to trying to make the procedural rules more simple. It is indeed their statutory duty. Courts Act 2003 s 75 asserts:
(5) Any power to make Family Procedure Rules is to be exercised with a view to securing that—
(a)the family justice system is accessible, fair and efficient, and
(b)the rules are both simple and simply expressed.
The reforms introduced for the new family court are extensive, diffuse and sometimes of dubious lawfulness. If their lawfulness is gauged by s 75(5) more provisions than those already probably illegal would be annulled. Cumulatively – and often individually – they are neither accessible nor fair. The reforms show little concern to construct a coherent procedural structure.
And the litigant in person is confronted by this multi-documented structure. S/he is unlikely to have the knowledge or the competence to challenge any of its vires. S/he must cope with it as it is. Thus, for example, take a parent who wants a child arrangements order. This is the staple of much family litigation – a custody or access order as was pre-1991 (and as still is to most members of the press and many lay-people). For such an order (new under Children and Families Act 2014 s from 22 April 2014) the parent must negotiate some or all of the following (a lawyer who was doing his/her job properly should be familiar with all of these provisions, as must the judge be):
- Children Act 1989 Parts 1 and 2
- Children and Families Act 2014 ss 10 and 13 (and possibly bits of Crime and Courts Act 2013 Sch 10)
- Family Procedure Rules 2010 parts 1, 2, 3, 4, 5, 6, 12 (Chapter 3 etc), 16 (perhaps),18 and 21-28
- Practice Direction 12A: the Child Arrangements Programme (and must know which parts are not intra vires the Act and rules)
- Other practice directions: eg PD27A re court bundles (see Re R below)
- The Family Court (Composition and Distribution of Business) Rules 2014
- Various case law
Some of the family proceedings rules will also require reference out to other rules (CPR 1998, County Court Rules 1981 etc especially in the area of costs (eg the other spouse is represented and her lawyer claims costs) and enforcement). This Russian doll approach to procedural law-making – if it is law: much of it may be ultra vires the provisions of s 75(5)(b), above – is hardly fair on either judge or litigant (represented or not).
Laziness of family law reformers
An unintended result of the English legal aid system is to have made family law reformers lazy. Reforms embodied in Family Procedure Rules 2010 have given professional lawyers and litigants in person alike an increasingly impenetrable mass of delegated and sub-delegated procedural law making. That has worsened substantially with the uncontrolled outpourings in the run up to 22 April. Alongside the disparate statutes – Children and Families Act 2014 and Crime and Courts Act 2013 Sch 10 which have brought in the family court – Family Procedure Rules 2010 have been amended piecemeal. Rules and practice directions of dubious legitimacy abound; and judges assume that they are bound by them (what is an honest family judge to do if s/he thinks the provision which the President directs him/her to apply is unlawful).
In the discretion-based system which many judges think family law to be, the outcomes of their cases will be increasingly difficult to predict (especially when it is realised that local courts are being encouraged to issue their own local practice directions). The judge will no longer be able to ask an advocate’s assistance on a question of law. The rule of law – it is not pompous to assert it – will suffer; and not from any lay litigant’s fault. The cumbersome nature of the emerging beast will be its own destroyer.
Case management and the litigant in person: towards an inquisitorial approach
Into this brew of family law and procedure must step the litigant in person: the individual who cannot afford the fees which many lawyers charge for the procedurally complex job lawyers are called up to do (a client on state benefits must still produce a variety of barely relevant financial information with a clutch of documents including his/her last twelve months bank statements to pursue even the most basic of financial claims). What can be done to help them; and what done – in the process – to improve the family breakdown law system of justice?
The first thing is to see case management and court process up to trial as a cooperative effort: judge at the apex and the parties define the issues, define the evidence required to deal with those issues and how that evidence (and by whom) will be marshalled and presented at trial.
CPR 1998 Part 1 which lead to FPR 2010 Part 1, and especially FPR 2010 r 1.4 are a helpful starting point. Ink from learned writers is being spilt over whether civil litigation should be ‘inquisitorial’. That process started in 1995 (at least) and with CPR 1998 r 1.4 and now FPR 2010 r 1.4 the move towards an inquisitorial process is well underway. The problem in many family proceedings is that judges do not comply with their ‘duties’ – their inquisitorial role – (as defined in r 1.4(3)). As a start, following any case management appointment a written set of issues should be pinned to the court file and copies sent to all parties; and then the list of factors in r 1.4 should be ticked off each time, and dealt with as appropriate. Call it case management, inquisitorial, interventionist, good sense – it all comes to the same thing. And then litigants in person go away feeling at least that their cases are being dealt with in a way they broadly understand.
Democratisation of procedural law
There must be one set of default civil proceedings rules, with family proceedings rules diverging from those (eg in children or domestic abuse proceedings) diverging only where need be (as with Family Proceedings Rules 1991 and earlier rules). Thus there would be no need for three different schemes for expert evidence in family proceedings (fun for lawyers, perhaps; but mysterious for laypeople).
Alongside this, and incorporated into one set of procedural rules which apply consistently in all areas of the family court (ie no, but no, local practice directions) gradually – say over 18mnoths – must be poured back in all the variety of rules – the child arrangements programme – masquerading as practice directions. They are not: they are procedural rules and should go through the proper statutory and democratic process to be such.
Finally begins the real task: to make all of this clear and simple (per s 75(5)). Life is often not simple: that can be why people go to court. Law is not always simple. There is no reason why procedure should be complex. We owe it to society as a whole, especially to litigants in person, and as the beginning of democratisation of law, to make it procedure as simple and as understandable as it can be.