Mark Heptinstall reports on stark warning from senior family judge: unrepresented parties face ‘unjust and wrong’ family court decisions

It’s no secret that our courts are under increasing pressure due to the huge number of people now representing themselves in family proceedings.  Now a recent Court of Appeal case highlights the risk of ‘unjust and wrong’ decisions being made in cases where one party lacks the benefit of professional legal representation.

Lord Justice Ryder gave the lead judgment in C (A Child) & Anor v KH [2013] EWCA Civ 1412 stating that the numerous ‘procedural irregularities’ in Children Act proceedings meant that ultimately, the order which prevented a father from removing his five year old son from his mother or his school, was wrong in law.

In his judgment Ryder LJ appealed to lawyers and judges alike to ‘put in place procedures and practices which can accommodate litigants in person who do not know the rules and practice directions of the court’.  Those representing themselves are often at a huge disadvantage, with Ryder LJ commenting that ‘a sad and usual consequence of a party being unrepresented’ is that the case against the respondent was presented with ‘inconsistency’.

Essentially there had been a failure at various points throughout this case both to ensure that the correct procedures had been used, and to explain the procedural requirements to the father.  This general lack of transparency ultimately led to a decision which was both ‘unjust and wrong’.  Had the father not appealed and the order been set aside, the child’s future relationship with his father would have been seriously compromised.

In particular, Ryder LJ examined the circumstances in which it is appropriate for the court to make orders against someone who is unaware that an application has been made, known as ‘without notice’ applications (formerly ‘ex parte’).  Ryder LJ underlined that only in cases of ‘exceptional urgency’ should a without notice application be made, usually when either the event to be prevented is imminent or where an order is required to be made without first alerting the respondent i.e where notice would ‘defeat the ends of justice’.

For several months the media has reported on the surge of applications by those representing themselves, and the huge demands on the family courts due to the additional time taken in dealing with one, and often two, unrepresented parties.  It is perhaps an inevitable consequence that litigants in person are at risk of errors of judgment by those appointed to adjudicate on family disputes, however Ryder LJ’s comments mean that our courts will be far more stringent when it comes to procedural matters, to ensure transparency in the decision making process.

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