The challenges of being a litigant in person
When you represent yourself in a contested family case, in other words without a lawyer, you are a ‘litigant in person’ (LIP). It’s a daunting experience and the best way to cope is to understand what’s going to happen, who is going to do what, what issues are going to be seen as important and what will not be seen as important, get good advice and be organised and make sure you do what’s necessary.
You need to be ready for CAFCASS. Their assessment process consists of preliminary screening, an initial telephone appointment and then, in normal times, face to face meetings. At the moment those meetings will be online or on the phone. You need to prepare your paperwork for the court and think how you will present your case. You will then have to attend court for hearings.
At the end of the process there will be a ‘final hearing’. At the final hearing you will need to present and argue your case to the court. You will be up against opposition from your ex, who may have a solicitor and a barrister. The CAFCASS family court adviser (FCA) will also give evidence. For the professionals involved it’s their jobs but for you it’s your life and much more stressful. The better prepared you are the less likely you are to be overwhelmed.
Unless you understand what’s relevant to CAFCASS and the court, you won’t know what to say in interviews or how to frame your arguments both verbally and on paper. Take some time to understand what CAFCASS is going to ask and what the court needs to hear (and not hear).
What to expect of CAFCASS
We have several posts already available covering the ways in which CAFCASS expect their FCA’s to assess families:
These and several other posts will take you through most of what you need to know in preparation for your assessment by the FCA.
What the court needs to hear
The main principles guiding the family court
Section 1 of the Children Act 1989 sets out three general principles:
- The welfare of the child is paramount;
- Delay is likely to prejudice the welfare of the child;
- The court shall not make an order unless to do so would be better for the child than making no order (called the ‘no order’ principle).
The welfare checklist
The ‘welfare checklist’ is a list of factors set out in section 1(3) of the Children Act. The court has to consider the welfare checklist before making, varying or discharging a contested section 8 order.
The welfare checklist items are:
- The ascertainable wishes and feelings of the child concerned (considered in the light of age and understanding);
- The child’s physical, emotional and educational needs;
- The likely effect on the child of any change in circumstances;
- The child’s age, sex, background and any characteristics which the court considers relevant;
- Any harm which the child has suffered or is at risk of suffering;
- How capable is each parent and any other person in relation to whom the court considers the question to be relevant, of meeting the child’s needs;
- The range of powers available to the court under this Act in the proceedings in question.
What the court will decide
Section 8 orders
Section 8 orders are:
- A Child Arrangement Order which determines residence, deciding who the child will live with, and contact, deciding the person or person(s) the child can visit or have other contact with;
- A Prohibited Steps Order which prevents someone, not necessarily a parent, from carrying out a particular action without the court’s agreement, for example moving the child to another jurisdiction;
- A Specific Issue Order, which deals with a single issue, commonly relating to education arrangements, medical decisions and holidays;
- A Special Guardianship Order, deciding where a child or young person will live with someone other than their parent(s) on a long-term basis.
Presumption of contact.
There is a presumption that it is in a child’s interests to have both parents involved in their life, unless there is a good reason why one should not be involved. There are circumstances when contact will not be allowed. Decisions will be based on the level of risk posed when there are problems such as domestic abuse, paedophilia, drug and alcohol abuse.
Presenting your case.
The court will want to hear your case and you should present it clearly and in a way that shows, firstly, you have the welfare of your child at heart and, secondly, that what you are asking the court to agree to is what’s best for your child. The same applies in any discussions you have with the FCA. Make sure what you say is framed in relation to your child. Don’t talk about what’s best for you, which is a common mistake, but what’s best for your child. Show that you understand and agree that the child’s welfare is both your and the court’s top priority.
In addition, refer to ‘the welfare checklist’ when it’s relevant and call it that when you’re talking in court or to the FCA. Frame your argument in court around the welfare checklist issues and use them to guide you in deciding what supporting evidence/documents you should try to present to the court in order to help your case. This is what a solicitor would be doing when preparing a case. If you can do this, you will assure the court that you have taken all relevant matters into account in making your case. Concentrate on these issues and don’t waffle. Be clear, concise and show you’ve thought it through properly.
What do you need the court to know:
- What outcome/court order you are seeking;
- Why your preferred outcome is in the best interests of your child; and
- Why your opponent’s outcome is not in the best interest of the child.
Framing your evidence around the factors in the welfare checklist and making sure that the court knows you have considered them will help you. Of course, not all of the factors will be relevant, so focus on the most relevant ones.
If you are opposed to a change in the child’s arrangements on the basis of the child’s physical, emotional and educational needs (B in the welfare checklist) you could argue that the other parent is not able to meet those needs as well as you. Of course you must then provide evidence and documents to the court in order to justify what you’re saying. You should be thinking about the overall impact the change will have on the child. For example, if you are thinking about the child’s schooling, an unnecessary change may affect exam preparation, attendance at clubs or other activities, losing touch with school friends and disrupting stability. You can use school reports, mock exam results or the child’s current schedule of activities to help prove your case. Who might back you up? How about approaching a teacher, a coach or a relative who could be a witness.
On the other hand, if you were supporting an application to change the child’s care arrangements, you might use an argument about your capability (F in the welfare checklist). In other words you would say you are the more capable parent and set out your evidence in support of this. In this example you’d have to show that you have better skills and experience to be the main carer. The kind of evidence that would be relevant would be something like being able to say that you’re a teaching assistant or you run a children’s club or help with sports activities. In this kind of case you might have to prove your opponent lacks capability because of problems, which might be something like drug or alcohol misuse. Or maybe you couldn’t provide the child’s care previously because of a health problem you had but you’ve overcome it. In all these examples you’d have to have sound evidence to support what you’re saying, for example getting medical evidence that you have recovered from a serious health issue from your GP or consultant.
Don’t be vague, be precise and produce evidence
It’s easy to use phrases, such as ‘in the best interests of the child’s welfare’ and ‘in the best interest of the child’, in a meaningless way. That’s not what’s required. Present your arguments clearly with specific reference to items in the welfare checklist. Use the checklist to guide you what to say and what evidence in support you can produce to support your position.
It’s also easy to use jargon such as ‘parental alienation’ or ‘narcissistic personality disorder’ but it’s best not to do so. Instead focus on describing the actual things that have happened (who said and did what, when and with what result) to show why you are saying the child will benefit from the proposals you are making.
Being in court is a nerve wracking experience and representing yourself is even more difficult, so make sure that you have presented all evidence you have, that the paperwork is clear and that you can demonstrate you have thought clearly about the matters that the court will be focused on.