Professional McKenzie Friends

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Going to Court is a nerve-wracking, stressful and emotional experience. Going to Court alone, with no support or help either with the preparation or someone to quietly support and advise you during the hearings amplifies that stress 10-fold. McKenzie Friends, on the whole, do an excellent job in supporting and advising Litigants in Person and the good ones tend to go unheralded and the  few rogue ones are held up as shining examples of why McKenzie Friends are detrimental to Litigants. More and more litigants are having to self-represent,and I have seen an increase in Litigants who don’t have English as a first language calling the advice line I work for – around of one third of all calls to the helpline are from those who have English as a second or third language.

The Judiciary recently launched a Consultation  called “Reforming the courts’ approach to McKenzie Friends” and is open until 31st May 2016.   The Consultation asks 10 questions and makes a number of suggestions.

A Register of McKenzie Friends.

In his recent blog, Michael Robinson (Custody Minefield) suggests that McKenzie Friends  sign up to the Professional Paralegal Register and therefore creating a register of McKenzie Friends. McKenzie Friends are not Paralegals, and not all Paralegals engage in MF work, the two are separate and should be kept separate, otherwise there may be confusion for clients/litigants.

It iIs my understanding that  the Institute of Paralegals intend to run a future project for the IoP to become the recognised body for McKenzie Friends . This is actually good news as it means that McKenzie Friends  would have practicing certificates, be graded according to the number of years experience and any relevant qualifications they may have,  to abide by a Code of Conduct as set by the IoP and have access to a wealth of support and experience from the IoP and its members.  I would hope the IoP make a clear distinction between Professional Paralegals and McKenzie Friends.

However, I would prefer to see a specific register for  McKenzie Friends – one that details areas of expertise, lists experience, relevant legal qualifications, fees, and so on.  Such a register would enable Litigants to source the most appropriate McKenzie Friend for them and their case; knowing that the information is up-to-date and the McKenzie Friend is a member of a professional body so that should there be any issues about the service received, a formal complaint can be raised with the IoP.   To be clear, the IoP isn’t a regulatory body, but a professional membership body and as such  do not have any powers to compel action to be taken or to award compensation. They can, however, discipline members of the Institute and advise clients on how to complain and to whom. . Perhaps, in time, the IoP or indeed the National Association of Licensed Paralegals (NALP) may become a regulatory body.  The proposed Code of Conduct would also be resolved by McKenzie Friends being able to join a recognised professional body, as the IoP already have an extensive Code of Conduct for Paralegals, and this could for the basis for an adaptation specifically for McKenzie Friends.

For those wishing to be known as Professional McKenzie Friends – ie fee-charging perhaps there is scope for Central Law Training or National Association of Licensed Paralegals to offer relevant training courses and qualifications tailored specifically for McKenzie Friends. CLT and NALP already offer a wide range of Paralegal Qualifications that are excellent and provide the successful student with a professional legal qualification that is widely recognised.  A similar qualification for McKenzie Friends would provide them with a higher level of professionalism that is currently not available for them.

All this would be voluntary, but if McKenzie Friends are going to be Professional McKenzie Friends, then lets ensure that they have access to the best possible resources/training/membership bodies/ possible – it protects both the McKenzie Friend  and the litigant.

A Handbook for McKenzie Friends and Litigants;

This is an excellent idea – a well-written Plain English guide for both Litigants and McKenzie Friends, especially the occasional McKenzie Friends , or the family friend who attends court to offer moral support.  The Family Law A to Z provides an excellent “dictionary” of legal terms and definitions, as well as being an essential reference guide., and in the absence of any Handbook, the A to Z is the next best thing.   Natasha Phillips has written in more details about the proposed Handbook here.

To Charge Fees or Not?

I don’t know a single McKenzie Friend who could afford to spend the required amount of time with each litigant, advising, helping with court preparation, attending whole days in Court etc without being able to charge a modest fee for their time and expertise.  To banish fee-charging McKenzie Friends would be a disaster for Litigants, especially those who have no other source of support or advice to rely on. What about those Litigants who don’t have English as a first language, or have dyslexia, or struggle generally with the archaic legal terminology; the Litigants who have been victims of Domestic Abuse, or false allegations, or who are so overwhelmed by the whole proceedings that they are little more than a crumpled mess on the floor? How on earth does banishing fee-charging Mfs help them? Those that fall into these categories would find the court process very difficult to navigate, take up far more court time than they would with the assistance of a Professional MF.   If travel and another associated costs are also to be removed as a result of this consultation, then quite simply, the number of McKenzie Friends being able to provide that vital court-day support and assistance would plummet, leaving litigants alone, vulnerable and struggling during the court process.

This whole section of the Consolation reads to me as not about protecting Litigants but about protectionism for solicitors; and seeking the wholescale removal of fee-charging  McKenzie Friends from courts.

This Town Ain’t Big Enough for the Both of Us.

Yes it is. There is a need for the services solicitors and barristers offer and provide, but there is also an increasing need for the vital services professional McKenzie Friends offer and provide.  Along with LASPO, the number of law firms has fallen, opening up new opportunities for Paralegal firms and fee-charging McKenzie Friends. The vast majority of those who use MF services (or Paralegal firms) do so because they simply can’t afford the high rates that solicitors charge, so it’s not as if  McKenzie Friends take work away from solicitors. I would argue that an experienced, knowledge McKenzie Friend assisting a Litigant actually helps the solicitor acting for the other side and can help prevent lengthy delays in the litigant dealing with and returning communications.

What’s In a Name?

The consultation also proposes to do away with the term McKenzie Friend and to replace it with “Court Supporter”.  I feel that Court Support is misleading – the  McKenzie Friend isn’t there to support the Court, but to support the Litigant.  In Scotland, McKenzie Friends are known as “Lay Advisers”, and while this is a better option, it doesn’t reflect the experience and any legal qualifications the Lay Adviser/MF may have.  If fee-charging McKenzie Friends are to become a profession in their own right by (for example) becoming a member of a professional body, being listed on a register of Professional McKenzie Friends, taking specific qualifications that I’ve outlined above, then this needs to be adequately reflected in the term used to describe them. Natasha Phillips has proposed Lay Lawyers – I like this a lot. I would also propose that non-fee-charging McKenzie Friends  ie, a friend who attends court with a litigant for moral support be known as a Litigant Supporter. These two different terms would then very clearly differentiate between fee-charging professionals McKenzie Friends and those that are there purely to offer support on the day.

 

This consultation appears to have an agenda – and it’s not one that is supportive of litigants or McKenzie Friends, but one that appears to seeks to remove the ability for McKenzie Friends to charge not just hourly fees but also expenses for attending court with a litigant; and therefore removing McKenzie Friends  completely. It is not in the interests of justice to do this, who would actually benefit from the wholesale removal of McKenzie Friends ? Certainly not the vulnerable litigants.  With the recent announcement of 86 courts to close, LASPO, the number of solicitor firms falling, court fees to rise alter this year (£550 just for a divorce application!), access to justice is slowly and surely being eroded away from the common man/woman. Now more than ever,  there is a need for professional McKenzie Friends /Lay Lawyers to assist litigants and therefore ensure that access to justice is continued and achievable.

List of 86 Courts To Close

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The following Courts will be closed, . Work will either move to an alternative HM Courts & Tribunals Service site, or a decision has been taken to establish suitable alternative local provision before a court will close (These courts are marked by an asterisk)

London

Bow County Court

Lambeth County Court

Midlands

Buxton Magistrates’ Court and County Court

Grantham Magistrates’ Court

Hinckley Magistrates’ Court

North East Consett Magistrates’ Court

North West Kendal Magistrates’ Court and County Court*

Macclesfield County Court

Macclesfield Magistrates’ Court

Ormskirk Magistrates’ Court and Family Court

Warrington County Court

South East

Aylesbury Magistrates’ Court, County Court and Family Court

Bury St. Edmunds Magistrates’ Court and Family Court and Bury St. Edmunds Crown Court*

Chichester Combined Court (Crown and County)*

Eastbourne Magistrates’ Court, County Court and Family Court*

Kings Lynn County Court and Family Court

Tunbridge Wells County Court and Family Court*

Wales

Carmarthen Law Courts (The Guildhall)

Dolgellau Crown and Magistrates’ Court*

Holyhead Magistrates’ Court*

Llangefni Civil and Family Court

Prestatyn Magistrates

The Lord Chancellor has decided that these courts will close as proposed.

London

Feltham Magistrates’ Court

Greenwich Magistrates’ Court

Hammersmith County Court (formerly West London County Court)

Pocock Street Tribunal Hearing Centre

Richmond-upon-Thames Magistrates’ Court

Tottenham Magistrates’ Court

Waltham Forest Magistrates’ Court

Woolwich County Court

 

Midlands

Birmingham Youth Court

Burton-upon-Trent Magistrates’ Court

Corby Magistrates’ Court

Kettering County Court

Kettering Magistrates’ Court

Sandwell Magistrates’ Court

Shrewsbury Magistrates’ Court

Skegness Magistrates’ Court

Solihull Magistrates’ Court

Stafford Magistrates’ Court

Worksop Magistrates’ Court

North East

Halifax County Court and Family Court

Halifax (Calderdale) Magistrates’ and Family Court

Hartlepool Magistrates’ Court and County Court

Morpeth County Court

Rotherham Magistrates’ Court, County Court and Family Court

Scunthorpe Magistrates’ Court, County Court and Family Court

Wakefield Magistrates’ Court

North West

Accrington County Court

Accrington Magistrates’ Court

Bolton County Court and Family Court

Bury Magistrates’ Court and County Court

Oldham County Court

Oldham Magistrates’ Court

Runcorn (Halton) Magistrates’ Court

St Helens Magistrates’ Court

Tameside County Court

Trafford Magistrates’ Court and Altrincham County Court

 

South East

Basildon Social Security and Child Support Tribunal (Acorn House)

Bedford and Mid Beds Magistrates’ Court and Family Court and

Bedford County Court and Family Court

Bicester Magistrates’ Court and Family Court

Chichester Magistrates’ Court

Colchester County Court and Family Court

Colchester County Court Offices

Dartford Magistrates’ Court

Dover Magistrates’ Court

Harlow Magistrates’ Court

Lowestoft Magistrates’ Court, County Court and Family Court

Redhill Magistrates’ Court and Family Court and

Reigate County Court and Family Court

St Albans County Court

Watford Magistrates’ Court and Family Court

West Berkshire (Newbury) Magistrates’ Court

South West

Barnstaple Crown Court

Bournemouth Magistrates’ Court

Cheltenham Rivershill House Tribunal

Chippenham Magistrates’ Court, Civil Court and Family Court

Dorchester Crown Court

Fareham Magistrates’ Court

Gloucester Magistrates’ Court

North Avon (Yate) Magistrates’ Court

Stroud Magistrates’ Court

Torquay Magistrates’ Court

Wales

Brecon Law Courts

Bridgend Law Courts

Neath and Port Talbot Civil and Family Court

Pontypridd Magistrates’ Court Wrexham Tribunal (Rhyd Broughton)

The Fault in the No-Fault Divorce Bill

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The campaign for a no-fault divorce  is gaining in popularity and strength. There are articles and commentary appearing regularly in legal online publications,  and research is being conducted by the University of Exeter (you can find out more by visiting findingfault.org.uk)

The No Fault Divorce Bill (HC Bill 77)  proposes that where couples are in agreement about divorce/civil partnership dissolution and wish to mutually divorce on the grounds of “no-fault”, then providing they both sign the documents stating thus, the divorce/dissolution can proceed; however, there is a proposal of a 12-month delay in between granting the Decree Nisi and the Decree Absolute. A whole year.

Richard Bacon MP (the Bill’s sponsor ) explains why:

The only other provision in my Bill would be a cooling-off period of one year before a decree of divorce could be made absolute, so that couples would have time to reflect on whether a divorce was really what they wanted.1

Surely the ideal time for a cooling-off period for couple to reflect if divorce/disolution is really the solution for them should before any proceedings are initiated, and not after the granting of the Nisi? This 12-month delay provides no real advantage to anyone and there is no legal or procedural reason for such a lengthy delay. What is concerning is that in among the many, many articles about the No Fault Bill is a lack of discussion about this year long delay between the Nisi and being able to apply for the Absolute. Any prescribed period of reflection should really come before submitting the divorce petition. The 12 month delay isn’t there to protect those couples who divorce using the mutual no-fault, and to allow them time to consider fully – if it were then that period of time would be mandatory before beginning divorce proceedings. It’s a bit odd really.

What we will end up with is effectively a two-tier divorce system – one where petitioners can cite “fault” or the mandatory long periods of separation, and where the divorce could be completed within a few months, and the other where couples agree to mutually divorce on the grounds of no-fault but have to wait much, much longer to complete the divorce process; taking into account the current timescales and the 12 month “waiting” period, a “no-fault” divorce could take 14/15 months or so to be finalised.

I would think that this 12-month delay would actually be a barrier for those who may wish to seek a no-fault divorce – meaning that the option to use unreasonable behaviour and therefore a potentially quicker resolution, is more appealing. Given that unreasonable behaviour can be anything from physical abuse to leaving the toilet seat up repeatedly there is a very wide scope of human behaviours and habits that can be cited as examples of the respondent’s alleged behaviour that makes it unreasonable to expect the petitioner to remain in the marriage.

Mr Richard Bacon also spoke of the desire for couples to receive counselling and for the Judge to inquire what efforts the couple had made to seek relationship counselling:

I would favour easier access to counselling. I would also favour more discretion for the judge to inquire into the intentions of the couple and the extent to which they had sought counselling. I would not object to making some form of counselling mandatory.1

I too would favour easier access to pre-divorce counselling. In Australia, couples who have been married for less than 2 years and are seeking to divorce must attend counselling to show that they have considered reconciliation. This counselling is compulsory. There is one ground for divorce in Australia, that being irretrievable breakdown and this is evidenced by a 12-month separation period. This usually means the establishment of two separate households. Fault such as adultery, cruelty etc are not relevant to this issue.2

There is a clear consensus that divorcing couples don’t always want to apportion blame on one or other, that some divorcing couples do wish to mutually divorce on a no-fault basis and it is right that the current legislation is revisited to make provision for a no-fault divorce option.

I would argue that we already have “no-fault” divorce with the separation periods of 2 and 5 years; there is a clear need to reduce the current separation periods on which people may use as a “fact” (or ground) – 2 years with consent is too long, and 5 years with no consent required is definitely too long.  There also needs to be a heavier burden of proof of unreasonable behaviour.  I would strongly favour – and support –  a move to a no-fault divorce based on shorter separation periods (1 year with consent, 2 years no consent required), and strong encouragement to divorcing couples to agree on the financial resolution and child arrangements much earlier in the divorce process. In Scotland, a divorce application cannot (usually) be submitted to the Sheriff court until the matters relating to child arrangements and financial division have been agreed upon and set out in a legally-binding Separation Agreement (similar to the Consent Order) – this makes much more sense both practically and in terms of couples coming to an earlier and amicable resolution, with the actual divorce process then being the final part of the process. But perhaps a call to mirror the Scots process is a step too far at the moment.

1 – Hansard – October 2015

s48 Family Law Act 1975

 

Proposed Amendments to Bundles (PD27A)

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Sir James Munby has recently published a Memorandum proposing amendments to the Bundles PD – PD27A.

In his announcement he said

“PD27A imposes a 350-page limit (PD 27A, para 5.1) and spells out (para 4.1) the fundamental principle that “The bundle shall contain copies of only those documents which are relevant to the hearing and which it is necessary for the court to read or which will actually be referred to during the hearing.” Compliance with these requirements is still fitful.

One matter which is not regulated by PD27A is the length of individual documents. I urged restraint in Re L [2015] EWFC 15, [2015] 1 FLR 1417, paras 21-22. I am not conscious that this has had much effect. I wonder whether the time has therefore not now come to impose page limits for certain types of documents, which will be mandatory in all cases “Unless” – cf PD27A, para 5.1 – “the court has specifically directed otherwise, being satisfied that such direction is necessary to enable the proceedings to be disposed of justly.”

I accordingly suggest for consideration the insertion in PD27A of a new para 5.2A, as follows:

“Unless the court has specifically directed otherwise, being satisfied that such direction is necessary to enable the proceedings to be disposed of justly, any of the following documents included in the bundle shall be limited to no more than the number of sheets of A4 paper and sides of text specified below:”

 

Case summary  4
Statement of issues 2
Position statement 5
Chronology 10
Skeleton argument 15
List of essential reading 1
Witness statement or affidavit (exclusive of exhibits) 20
Expert’s or other report 40
Care plan 10

 

He continues in the Memorandum:

I ask three questions: (i) is this desirable; (ii) if so, should length be controlled by a page count or a word count; and (iii) if by page count, are the suggested figures are appropriate?

As a separate matter, I further suggest that the final words of PD27A, para 4.3, be re-numbered 4.3A and amended to read (additional words show in italic):

“Copies of all authorities relied on must be contained in a separate composite bundle agreed between the advocates. Unless the court has specifically directed otherwise, being satisfied that such direction is necessary to enable the proceedings to be disposed of justly, the bundle shall not contain more than 10 authorities. Where a case is reported in a law report which contains a headnote, such a report shall be used and transcripts (including transcripts on BAILII) shall not be used. Attention is drawn to the Practice Direction dated 24 March 2012.”

The need for this is indicated by Holman J’s judgment in Seagrove v Sullivan [2014] EWHC 4110 (Fam), paras 21-22.”

 

For those that don’t want to trawl through the Judgement in Seagrove V Sullivan, those paragraphs mentioned in the Memorandum are here:

[21] As long ago as 24 March 2012, the then Lord Chief Justice issued a practice direction headed ‘Citation of Authorities’. That practice direction is reproduced and very clearly available to family practitioners at page 2962 of the current, 2014 edition of the Family Court Practice. Paragraph 14 of the direction makes plain that it has been made with the agreement of, amongst others, the President of the Family Division. Paragraph 1 provides that:

‘This Practice Direction is issued in order to clarify the practice and procedure governing the citation of authorities and applies throughout the Senior Courts of England and Wales, including the Crown Court, in county courts and in magistrates’ courts.’

It varies an earlier practice direction so that the relevant part of that practice direction now provides that:

‘The bundle of authorities should comply with the requirements of Practice Direction: Citation of Authorities (2012) and in general –

 

(a) have the relevant passages of the authorities marked;

(b) not include authorities for propositions not in dispute; and

(c) not contain more than 10 authorities unless the scale of the appeal warrants more extensive citation.’

Although it is true that subparagraph (c) makes reference to ‘the appeal’, it is, frankly, inconceivable that more authorities should be liable to be cited at the level of first instance than at the level of an appeal. So the clear starting point is that a bundle of authorities should not contain more than ten authorities, unless the scale of the case warrants more extensive citation.

[22] Pausing there, one wonders what it is about this case that requires and justifies citation of three times the number of authorities that the Lord Chief Justice, with the agreement of the President of the Family Division, clearly stipulated.

 

 

Changes to the Child Arrangements Programme

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The President of the Family Division, Sir James Munby, has announced that the CAP orders for private law children proceedings are to be changed. In an announcement dated 21st January 2016, he wrote:

In November 2014 I asked a group of district judges (Martin Dancey, Chris Darbyshire, Geoff Edwards, James Heyworth and Patrick Perusko, later assisted by Max Ellington) to look again at the CAP orders for private law cases.

I was all too conscious that the existing orders were not doing what was required. I made clear that the task was to be approached with a clean sheet and not encumbered by the requirements of PD12B regarding the content of orders. Since then those judges have been working to draft private law orders that they consider, and I agree, have to meet certain purposes. First, the orders have been prepared on the basis that the primary and most important audience is the parties themselves, more often than not now unrepresented. So they must be as concise as possible and easy to understand. The orders have been seen by AdviceNow and their suggestions for simpler language have been incorporated.

Secondly, a problem with the CAP orders was the extent to which they required recitals before the operative part of the order was reached. Of course recitals can be very useful in explaining the context of an order and dealing with matters that should not be in the order itself. However there was a strong feeling that the sheer length of orders with long recitals was too daunting, particularly for litigants in person. So the new orders are less prescriptive as to recitals, leaving it to the good sense of judges in any particular case what they choose to include or leave out. With the agreement of the Family Procedure Rules Committee I have now approved amendments to PD12B removing the requirement for certain information to be included on the face of orders.

Thirdly, CPR 81.9 requires that, to be enforceable, penal and warning notices must be prominently displayed on the front of the order. Necessarily therefore, all the warning notices have been collected together on the front page. Fourthly, it is hoped that as many judges and justices’ legal advisers as possible will use the Judicial Template to produce the new orders. I would very much encourage you to do so. I know that in some areas they are used by judges and legal advisers at all levels. However, tick box forms have been drawn up for those who do not feel able to use the Templates.

In an attempt to keep these forms to a manageable length they are separated into A Allocation and Gatekeeping, B Case Management Directions and Section 8 and other Orders and C Enforcement. HMCTS staff are being provided with the full text of the orders to which the tick box forms relate so they can draw the appropriate orders using FamilyMan.

Whichever method is used to produce orders I am keen that parties should leave court with a copy of the order made at the hearing whenever possible. That will usually be achieved if the Template is used. Fifthly, it is important that practitioners have access to the same orders as judges so that they can draft consistently.

To that end I am making them available to the Bar and Law Society to circulate to family practitioners.

I am immensely grateful to Martin and his team for all their hard work and trust that users of the revised forms will agree with me that they have made very great improvements.

You will know that District Judge Geoff Edwards was responsible for the family and civil templates. His tireless work on these templates over so many years was invaluable. His unexpected death in November last year left a huge gap. He is sorely missed. I am very grateful to retired District Judge Bill Vincent for stepping in and completing Geoff’s work.

 

The revised orders have been prepared on the basis that:

  • The primary and most important audience is the parties themselves, more often than not now unrepresented, and must be as concise as possible and easy to understand.  The orders have been seen by AdviceNow and their suggestions for simpler language have been incorporated.
  • A problem with the CAP orders was the extent to which they required recitals before the operative part of the order was reached.  While recitals can be very useful in explaining the context of an order and dealing with matters that should not be in the order itself, there was a strong feeling that the sheer length of orders with long recitals was too daunting, particularly for litigants in person.  The new orders are less prescriptive as to recitals, leaving it to judges in any particular case as to what they choose to include or leave out.  With the agreement of the Family Procedure Rules Committee, the President has approved amendments to PD 12B removing the requirement for certain information to be included on the face of orders.
  • Rule 81.9 of the Civil Procedure Rules 1998 requires that, to be enforceable, penal and warning notices must be prominently displayed on the front of the order.  All the warning notices have therefore been collected together on the front page.
  • It is hoped that as many judges and justices’ legal advisers as possible will use the judicial template to produce the new orders and are encouraged to do so by the President.  Tick box forms have been drawn up for those who do not use the templates.
  • In an attempt to keep the forms to a manageable length they are separated into: A Allocation and gatekeeping; B Case management directions and section 8 and other orders; and C Enforcement.
  • HMCTS staff are being provided with the full text of the orders to which the tick box forms relate so they can draw the appropriate orders using the courts’ IT programme, FamilyMan.  Whichever method is used to produce orders the President is keen that parties should leave court with a copy of the order made at the hearing whenever possible.

You can view the new “tick-box” Orders here – Child Arrangements Programme Master Orders

More accessible language is very welcome – as the numbers of litigants in person rise in Private Family Law cases, there is ever more a need for simpler, clearer wording and layout of court orders. All too often, parents are left bamboozled by the archaic language in orders – and application forms (one of the reasons why Nick and I wrote the Family Law A-Z). I wonder if there will be a similar overhaul of the Ancillary Relief orders in the near future?

The guidance gives no indication as to when the new “tick-box” orders will be adopted.

 

Children of the Revolution

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The language and vocabulary  we use say much more about us than the words alone.

In the field of family break-down, I am very aware of the language and words used by parents. Often, without realising what they are actually projecting, people use words, phrases, language which often tells me much more than they think are saying. The words used can either calm a situation or more often than not, increase and inflame hostility and conflict.

I have read many, many statements from parents in support of their proposals for parenting time. All too often, they focus on what the parent wants – starting sentences with “I want”, using self-focused language that moves the emphasis on to what the parent desires, rather than keeping the  child’s needs as the heart of the statement.

Language can often inflame an already delicate situation, and create fractures and hostility where adopting a different sort of language would actually do the opposite. Such examples of unhealthy or unhelpful language are:

Gatekeeping Language:

“I allow him to see the children”; “I have told him when he can see the children”; “I have made it very clear that the children will live with me, and they can visit him”. This type of language is frequent, it is controlling language, limiting the actions and parenting input of the recipient of such language.

Entitlement Language

“I am entitled to a large share of the assets/their pension”, “She isn’t entitled to anything – it was me who worked for it all, all she did was stay home and have babies”. This language suggests that the speaker has a belief that s/he is inherently deserving of of privileges or special treatment.

Ownership Language

“I gave birth to them, they are MY children”; “I want MY days/time with the children”; – ie treating children as possessions

Instructive Language – You will, you must, you should…. This is directive and holds an expectation of compliance from the other parent.

Both genders are guilty of using such language – it is not solely confined to one gender or the other.

In recent history the acronyms/terms PWC, Absent Parent and NRP were and in some instances still are used as acceptable terms/acronyms to describe the status of each parent in their child’s life, the role they play and therefore the importance of each parent in that child’s life.

PWC, which is usually take to mean Parent with Care, stems from the Child Support Act 1991 – and the actual wording in the Act (s3) is person with care, and not Parent with Care.

Absent parent within the confines of the Child Support Act 1991 refers to the person with the responsibility to pay child support, this was then replaced with the term NRP in January 2001.

And NRP simply stands for Non-Resident Parent, and is more often than not, referring to fathers.

Absent parent was an incredibly insulting and degrading term to be used in a legislative act and, unfortunately, the term stuck, and was banded about by the gutter press and organisations promoting single-motherhood as yet another stick with which to beat fathers and proclaim them to be “deadbeat dads”.

PWC suggests that this person has a greater presence, a greater influence, a greater investment into their child, and therefore the one who wields the power.

NRP suggests that this person has much less presence (physical and emotional), much less influence, and much less investment into their child, and that their main role in their child’s life is simply to provide additional money.

This is such an extraordinary imbalance on the scales of parenting, these terms are actually financial services terms, in respect of who pays and who receives, they were never designed to be used as role descriptions for parents in terms of the care they individually gave to their children, or indeed the amount of time they individually spend with their child.   The terms used in the legislation were never intended to be seized upon by the outside world and used in a judgemental pseudo-official way to define a parent’s status in their child’s life.

Over the last 18 months or so, people posting on the Wikivorce forum have moved away from talking about PWC (or indeed primary carers) and NRPs (and certainly Absent Fathers), and collectively, as a community, and with no prior instruction or direction by the forum management. This change in language was lead, I suspect by a handful of prominent and regular posters (both male and female), who used far more inclusive and non-judgemental terms and language, the main lead was using language and terminology that is child-focused, family-focused.

 

This change in language and problem-solving has been assisted in part by the changes in child maintenance and the setting up of the Child Maintenance Service, and the fact that where there is equal care of a child, the calculation for child support will be £0 – regardless of who earns what. Each parent will then have the same outgoings for their children. The push of Family Based Arrangements for child support, and the introduction of a fairly hefty collection and delivery fee were designed not only to make the system pay for itself (or at least in part), but also to encourage parents to communicate and sort out their own arrangements regarding child support.

The Children and Families Act 2014 introduced the Child Arrangements Orders and did away with Residence and Contact Orders – CAO applications now require all aspects of arrangements for a child to be considered and set out when making an application – it’s not enough to simply state you wish to have the child live with you, you must also include a parenting plan setting out what the arrangements will, including how often they will spend time with their other parent. The change to Child Arrangements Orders sought to include both parents in such arrangements rather than the old Residence Orders and Contact Orders, which excluded one parent.

The change to child-focused language on the Wikivorce forum is not just healthy and now beginning to filter down to other internet communities and forums, but the fact is that it was a natural evolution of language and approach to looking at situations to one that is child-focused, rather than adult-focused. The evolution is parent-led, and is bottom-up, rather than top-down which is so often the case with mothers’/fathers’ groups. Using language that is child- and not adult-centric goes against the tide of language we so often see from mothers’ groups and fathers’ rights groups – all of whom claim to be child-focused but so often belie their own proclamations with the information and articles they publish and share.  Posting anonymously, with a purely altruistic ethos with no interest in personal gain or having their ego massaged and inflated, these people are the ones who are guiding parents out of the dark ages and into a new age of talking and problem-solving.  Often these guiding lights will post on other forums and talk face-to-face with other parents (especially after their own situation is resolved) this change and approach to language and problem-solving filters through to others who may not have otherwise been exposed to a child-focused ethos. I have written previously about the issues with gender-based support for those experiencing divorce/separation/family break-down – Taking The Gender Out Of Family Breakdown

This change is country-wide rather than being limited to one small geographical area and therefore reaching out to a great many more parents and people. It filters down into the Position Statements parents write, the communications they send to the other parent, the way they approach problem-solving, the way they think about their situation and are more able to take on board the perceptions of the other parent. There is also a good understanding of the Kübler-Ross grieving cycle   – often referred to as the “Rollercoaster” on the Wikivorce forum, understanding what each stage is, and where individuals are most likely to be in this rollercoaster also helps those replying to posts give the appropriate advice at the right time; as well as put across the perspective of the other spouse who may well not be in the same emotional place as the one asking questions on the forum.

Wikivorce is owned by a man, and the community area is managed by a woman who is assisted by a team of volunteers (both men and women) – neither are interested in the slightest in gender-politics, only in helping people and ensuring that those who seek help and assistance receive the very best that the organisation can offer. Those prominent members who work on the free advice line and/or respond to posts and requests on a very frequent and regular basis are a mix of men and women, some professional, others who have their own personal experiences of divorce/separation/family break-down – the wealth of personal experience is vast. Again, these people are not interested in gender-politics, but with the very real job of assisting those who seek help and support.

The people on Wikivorce, and Wikivorce itself as an organisation, are leading by example, turning against the current tide, and creating a new approach for others to follow – an approach where men and women work together, not against each other, where men and women support one another during their darkest days using empathy and understanding, where men and women are collaborating together to provide a space for all those that need support and help and advice.

The way forward won’t be easy – I’m quite sure there are those self-styled experts who will dismiss this article, and the collective efforts of Wikivorce and its members as nonsense, but it’s very hard to dismiss the changes that are now actually happening and evident to see.

This is not just evolution, this is revolution.

Cui dono lepidum nouum libellum?

ExInjuria

BookCoverPreview Final

At long last, my translation of Catullus is to be available – immediately on Createspace from this link: https://www.createspace.com/5710924

or within a couple of days on Amazon: http://www.amazon.co.uk/Catullus-Poems-Translation-Gaius-Valerius/dp/1517138450/ref=sr_1_1?s=books&ie=UTF8&qid=1453551668&sr=1-1

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Update on investigation into faulty online form used in divorce proceedings.

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Written statement to Parliament from the Ministry of Justice and Shailesh Vara MP

Just prior to the Christmas recess, an error was identified in an online version of Form E.

This is the form provided by Her Majesty’s Courts and Tribunals Service (HMCTS) in order to enable people to disclose financial information during divorce and similar proceedings.

This fault meant that the automatic calculator in the form calculated the wrong total for an individual’s net assets by failing to deduct certain liabilities.

The Ministry of Justice (MOJ) was alerted to the fault on 10 December 2015 and a corrected version of the form was put online on 14 December. However the wider implications of the faulty form were not immediately recognised.

As soon as I was made aware of this issue on 16 December, I ordered an urgent investigation.

The investigation found the faulty formula was present in versions of Form E which were online between April 2014 and mid December 2015 and between April 2011 and January 2012.

A total of 36,527 cases contain a version of Form E filed from these periods. HMCTS staff have now reviewed all these cases and found that 3,638 files – 10% – contained the faulty calculator version of Form E with an incorrect figure for net assets figure in the summary table.

1,403 of these cases are still live, allowing HMCTS to intervene immediately to clearly flag these cases to the courts in order to avoid the error affecting the final orders in these cases.

The remaining 2,235 files – 6.1% – were closed cases. Although the faulty form was used in these cases, it will not necessarily have had any effect on the ultimate outcome. Form E is only a part of the material used by the parties and the court and is used at an early stage, so the information is often disputed or superseded by further information introduced during proceedings.

Following the error coming to light, HMCTS established a dedicated email address which people could use if they were concerned about their own case: formE@hmcts.gsi.gov.uk. This email address was advertised on our website and also in all responses to media enquiries. As of 21 January, 51 members of the public have emailed us about their case.

I have instructed HMCTS to write to all parties in the 2,235 closed cases. The letter expresses our sincere regret for the error, sets out what happened and explains that, although Form E is just one part of the evidence used in their case, there remains a possibility that the error affected the final outcome.

The letter sets out options available to people involved in these cases. Some may wish to do nothing, if, for example, they know that the error was corrected during the proceedings or they do not wish to re-open their cases. If people think they have been affected by this error then they can apply to the court to vary or set aside their order. My officials consulted the President of the Family Division about the court rules and procedures that would apply to such applications or for any other proceedings that might be open to the parties. My officials also consulted the President on the development of a specific form for such applications. We have provided a link to the new form in our letter to the parties, as well as guidance on how to complete the form.

I have instructed that no court fee will be charged for making this application, and this is also made this clear in the letter from HMCTS.

We are also uploading a new version of Form E which makes clearer how the calculation of net assets should be made. We will also consider the future of Form E as part of our broader court reforms and the automatic calculator function will be disabled during this process.

This failure should not have happened. Divorce proceedings can be very difficult and I sincerely apologise for this situation and any distress it may have caused.

 

I have written previously about this issue – Error in Online Form E calculations – is my judgement affected?

What Are Your Options if You Can’t Afford a Solicitor?

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There are a number of alternative options:

Represent yourself entirely. Wikivorce is the best free resource for litigants in person in family proceedings. The only costs you would incur are your own travel/stationery/other associated costs and court fees. You would do all the work, and have to address the court yourself. You can always take a McKenzie Friend with you to provide support, take notes and quietly give advice during the court proceedings.

Represent yourself, and use a solicitor on an as and when basis for legal advice (known as unbundling). Although you would be doing the bulk of the work yourself, you would still have the back-up of legal advice from a solicitor, and be able to keep a tight reign on the costs.

Represent yourself, do the work, and instruct a direct access barrister to represent you at hearings and speak on your behalf at court hearings – especially a Final Hearing.

If your spouse is a high earner, then it may be possible for you to apply to court for a Legal Services Order, which would provide you with assistance in paying your legal costs. More information can be found here – Legal Services Orders

This post on Wikivorce has a wealth of very useful guides/articles/document templates that LiPs may find useful –Useful Resources for Litigants in Person

Over the next few months, I will be focusing on writing and sharing articles aimed at those who are unable to afford a solicitor and who have no option but to represent themselves in family litigation.

House of Commons research briefing published on rise of LiPs in Civil and Famaily Cases

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The House of Commons Library has published a research briefing collating all the available information concerning the increase in self-representation in family and civil proceedings.

 

Summary

The available evidence indicates that the proportion of litigants appearing before the civil and family courts without legal representation (litigants in person, also sometimes called self-represented litigants) has increased since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 took many civil and private law children and family cases out of scope for legal aid in England and Wales from 1 April 2013.

The changes to the scope of civil and family legal aid have proved controversial. Concerns have been expressed about the effects on individuals who are no longer eligible for legal aid to resolve legal problems and on the courts which must deal with increased numbers of litigants in person.

Whether the reforms will generate the savings that have been claimed – or whether the increased numbers of litigants in person will drive up costs – has also been debated. Reliable data on LIPs are scarce and the National Audit Office (NAO) has been critical of the limitations of the MoJ’s data.

Most of the data that are available concern LIPs in the family courts, although the NAO has said that the legal aid reforms are likely also to have increased the number of LIPs in civil law courts.

The NAO has reported a 22% increase in cases involving contact with children (Children Act 1989 private law matters) and a 30% increase across all family court cases (including those that remain eligible for civil legal aid) in which neither party had legal representation.

In its own inquiry into the impact of the changes to civil legal aid, the Commons Justice Committee looked in some detail at the effects of the changes on the numbers of LIPs and their experiences. The Committee heard evidence to suggest that not only were there more LIPs, they were now qualitatively different. In the past, LIPs had been in the courts by choice but now they were there because they could not get legal aid. The Committee voiced concern that some LIPs might have difficulty in presenting their case.

 

Particular issues surrounding the Legal Aid, Sentencing and Punishment of Offenders Act 2012’s impact on clients seeking help with legal problems, the availability of legal aid for victims of domestic abuse, and the apparent rise in the number of “advice deserts” observed since the 2012 Act came into force are discussed in other Commons Library briefings, available on Parliament’s topic page for legal aid

The full briefing paper can be read here – Litigants in person: the rise of the self-represented litigant in civil and family cases in England and Wales

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