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It is very common [1] in private law children’s proceedings for one or both parties to be litigants-in-person. This fact should make no difference to the substantive determination of the case, but it may give rise to some procedural issues and, dealing with the case, the court will be cognisant of the requirements of the overriding objective [2] and will want to ensure there is fairness between the parties, as far as possible an equal footing and full and proper engagement by all parties.

In a case of complexity, where the court is particularly concerned that a litigant-in-person would be prejudiced by not being legally represented, it may want to draw attention to the various pro bono schemes which are available [3] or to the potential availability of Exceptional Legal Aid Funding, [4] but these solutions are likely to be available in only a very small number of cases.

Many litigants-in-person will be well able to represent their own interests, but a significant number will have vulnerabilities – for example language difficulties, physical disabilities, cognitive difficulties, substance abuse issues, mental health issues or being the victim of domestic abuse – which will affect their ability to participate properly in the proceedings. The court has a duty to consider this and, if appropriate, to make a participation direction to alleviate the problem. [5] Possible participation directions include the use of protective screens in court, participation by remote means such as video evidence, [6] strictly controlling cross-examination or arranging for the provision of a language interpreter (at the expense of HMCTS). The Domestic Abuse Bill currently being considered by Parliament may, if it is enacted, provide additional assistance in this regard.

The court may wish to be sympathetic to a litigant-in-person who gets into a muddle through unfamiliarity with the rules, but although ‘there is a general duty on tribunals to assist litigants, depending on the circumstances, … it is for the tribunal to decide what this duty requires in any particular case and how best to fulfil it, whilst remaining impartial’ and ‘the fact that a litigant is acting in person is not in itself a reason to disapply procedural rules or orders or directions, or excuse non-compliance with them’. [7]

Where a litigant-in-person ‘is unable to examine or cross-examine a witness effectively, the court is to (a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and (b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper’; [8] but in conducting the examination of a witness the judge can be ‘drawn into the role of inquisitor’ and, sometimes, go beyond ‘simply assisting the litigant in person to present her case’ and this may provide a basis for appellate interference. [9] The role of the judge is to ‘hone and refine the questions in a way that does justice to both parties … A judge should never feel constrained to put every question the lay party seeks to ask … the judge will simply have to evaluate relevance and proportionality’. [10]

[1] Particularly since the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which took the majority of private law children cases out of scope for legal aid.
[2] FPR 2010, r 1.
[3] The National Pro Bono Centre is at 48 Chancery Lane, London, WC2A 1JF and can be contacted by telephone on 020 7092 3960 or by email on Enquiries@weareadvocate.org.uk.
[4] See ‘The Lord Chancellor’s Exceptional Funding Guidance (Non Inquests)’, guidance issued under LASPO, s 4(3). This guidance suggests that exceptional funding may be available where ‘it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of the individual’s Convention rights (within the meaning of the Human Rights Act 1998)’ and Crowther v Crowther [2017] EWCA Civ 2698.
[5] FPR 2010, r 3A.
[6] During the Covid-19 restrictions this has, of course, become fairly routine anyway.
[7] EDF Energy v Re-Energised [2018] EWHC 652.
[8] Matrimonial and Family Proceedings Act 1984, s 31G(6).
[9] Crowther v Crowther [2017] EWCA Civ 2698.
[10] PS v BP [2018] EWHC 1987

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