Litigants in person in private family law cases

1. Context (p1-2 of the Report) The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 removed most private family cases from the scope of legal aid after April 2013. It was anticipated that the volume and proportion of litigants in person (hereafter LIPs) would increase as a result. The Ministry of Justice commissioned research to explore both the characteristics and support needs of LIPs in private family law cases and their impact on the courts prior to the implementation of legal aid reforms. It was designed to inform policy and practice responses to LIPs following the legal aid changes. 2. Research design (p3-10 and p136-164 of the Report) The study was designed to develop understanding of the range of litigants in person in private family law cases, their behavioural drivers and support needs, and their impact on the court system. The research was designed as a primarily qualitative study focusing on understanding the range of experiences and perspectives, rather than a quantitative study seeking to measure variables. The research included three linked studies: • Intensive Cases Study (ICS). The largest element of the research involved detailed analysis of a sample of 151 cases heard in five courts over a three to four week data collection time frame in each court between January and March 2013. The approach was multi-perspectival, involving observation of the hearing in each case, interviews with the parties and professionals associated with the observed case (subject to consent and availability) and scrutiny of the court file. • Local Contextual Study (LCS). This involved a series of focus groups in each of the five courts with local stakeholders (judges, lawyers, Cafcass and court staff), interviews and observations with local LIP support organisations and observations of public areas such as court counters and waiting rooms. • Secondary Analysis Study (SAS). This involved secondary analysis relating to LIPs of two large national datasets from two current studies led by members of the research team. 3. Main findings 3.1 Characteristics of LIPs (p11-34 of the Report) The major reason for self-representation was an inability to afford a lawyer, with only around one quarter of LIPs indicating that their appearance in person was wholly or partially a matter of choice. Over half of the LIPs observed had had legal representation at some stage during the current proceeding and/or in previous family law proceedings. Only a small minority of LIPs were able to represent themselves competently in all aspects of their family law proceedings. Even those with high levels of education or professional experience struggled with aspects of the legal process. The great majority of LIPs were procedurally (and, where relevant, legally) challenged in some way, with some having no real capacity to advocate for their own or their children’s interests. A wide range of personal vulnerabilities were identified with around half of those observed experiencing one or more vulnerabilities which often added to their difficulties in self-representation and in some cases defeated their attempts to do so. A significant number were also trying to handle quite complex cases. LIPs may create problems for the courts by reason of non-appearances, refusal to engage with proceedings, or, less often, violent and aggressive behaviour. While non-appearances may be quite common, the reasons for apparent resistance to court proceedings, as for violence and aggression, may often be related to litigants’ vulnerabilities. Unmeritorious and serial applications did not appear to be brought any more often by the LIPs in the sample than by represented parties, although having to respond to these applications was another vulnerability faced by some women LIPs. 3.2 Pre-hearing preparations (p35-51 of the Report) Much of the work in a family case is conducted before and between hearings rather than in the courtroom itself. The list of tasks to be accomplished in the pre-court and between-hearing phases is quite extensive and technically and practically demanding. The list includes determining legal merits and translating a dispute into legal form; consideration of mediation; making an application using the correct form and filing and serving correctly; possible negotiation with the other side in the waiting room and subsequent handling of the case (e.g. handling disclosure, preparing and filing statements). The successful completion of these tasks was important for the smooth running of the case and for timely and effective hearings. The extent to which LIPs were able to complete those tasks was highly variable. Understandably, many LIPs struggled with a range of technical tasks, including understanding which application form to use, how to complete it and how to file and serve correctly. Some LIPs faced practical problems such as an inability to access or print out online forms. Many LIPs also did not grasp foundational legal principles or concepts such as the importance of disclosure or the expectation of negotiation or settlement. A significant part of the problem is that the family justice system and the pre-court processes, procedures and tasks are predicated on a full representation model with two trained and experienced lawyers undertaking all these preparatory tasks. At least at the time of the fieldwork, there had been limited adaptation of processes to support LIPs and instead LIPs were largely required to comply with existing processes. There had been comparatively little adaptation of documentation (forms, guidance, letters from court etc) to meet the needs of LIPs. There was limited face-to face contact, advice and support at all stages of the pre-court process and on arrival in the court building before the hearing. The support available from court service staff varied locally but was constrained by concerns about straying into giving legal advice. The reduction in court counter hours and switch to an appointment system in some courts has reduced further the opportunities for face-to-face support. The challenging and complex nature of the pre-hearing tasks, coupled with limited support and advice, was a source of anxiety and stress for many LIPs. It also had consequences for court service staff workloads as they had to deal with correspondence from LIPs or pick up the errors or omissions in LIP paperwork. Some of the problems also had a significant impact on the conduct of the hearing itself. 3.3 In the courtroom (p52-78 of the Report) The court system is based on an adversarial, full representation model with two lawyers presenting their client’s cases to an impartial arbiter – the judge – who will make a decision. The role of the lawyers is central. Hearings where both parties were represented were generally patterned, predictable and efficient. All participants understood their roles without any need for explanation or behaviour management. LIP hearings were far less standardised. There was considerable variation in who picked up the tasks that a lawyer would normally perform in their absence – whether it was a LIP, the judge, the lawyer for the represented party or nobody. There was also variation in how effectively those tasks were done. The data suggested that semi-represented cases had longer final hearings and required more hearings than fully represented and non-represented cases. Cases with a LIP were more likely to require adjudication or be withdrawn or dismissed. Secondary analysis of a dataset of financial remedy contested hearings also suggested that LIP cases were less likely to settle and less likely to settle early than fully represented cases. There was variation in how well LIP hearings appear to work or not work in court. Four types appeared relatively fair and efficient/effective: umbrella semi – the represented party’s lawyer works on behalf of both parties; third party (quasi) lawyer – the children’s lawyer acts as broker for both LIPs; fully inquisitorial judge – the judge takes on the role of lawyer(s) and judge holding-their-own LIPs – a competent LIP manages a simple hearing with support from the judge. Four types of hearing appeared inefficient/ineffective or unfair: “hot potato” hearings - chaotic hearings with disruptive LIPs, adjourned or listed for contested hearings; over-confident LIPs - rambling hearings unable to restrict LIPs to legally relevant matters; out of their depth LIPs – LIPs unable to understand/accomplish tasks resulting in longer or extra hearings and unprotected LIPs - LIPs unable to explore concerns/present case. A combination of factors appears to influence how well courts and LIPs cope. These include matter and hearing type (directions vs. substantive hearing), the approach of the judge and any legal representative, the availability of any facilitative third party and the capacity of the LIP(s). The availability of additional professional (legal) support for the LIP was often key to success. Three of the four types of ‘working’ hearings involved either a supportive lawyer or an activist/inquisitorial judge. Causes of delay included LIPs’ lack of understanding and experience meaning sometimes critical tasks were missed out, were done inadequately or were completed by the LIP only with considerable coaching and support from others, particularly judges. Ensuring equality of arms between parties was a real challenge, notably when a LIP was unaware of their legal entitlements and/or unable to do justice to their case. Judges varied considerably in the extent to which they helped LIPs, in itself a source of potential unfairness. Judicial attempts to support LIPs could be seen as unfair to represented parties in semi-representation cases. Two key ‘legal’ tasks - the preparation of bundles and cross-examination - were beyond the capacity of most LIPs unless they had considerable help. 3.4 The support needs of litigants in person (p79-100 of the Report) The LIP experience was mixed, sometimes better than expected but often stressful and confusing. LIPs reported fear and anxiety about the process, feeling marginalised and bewilderment and confusion, regardless of educational level. Factors that made the experience more positive were judges and sometimes opposing solicitors who took time to explain things and being able to draw upon previous experience of being at court. A degree of self-assurance or confidence was helpful, although over-confidence and an over-estimation of one’s understanding of the process could cause difficulties. The main support needs identified by LIPs were for information about process and procedure, emotional support, practical support and tailored legal advice including broad questions about their entitlements and specific questions about tactics and tasks. LIPs varied enormously in terms both of willingness and ability to seek support and of the effectiveness with which support was sought. A minority of LIPs were proactive in searching for information without any prompting by the courts. The proactive LIPs could be divided into the capable/organised and those with a scattergun/shot in the dark approach, although even the capable/organised could find it difficult to find the information they needed. Reactive LIPs responded to instructions or suggestions from family justice professionals, especially where those instructions were clear and precise. Passive LIPs relied on others to provide help, did not engage with the court process or had chaotic lifestyles. Support for LIPs at the time of the study was disparate, variable and limited. The internet has potential for informing LIPs, as well as some very significant drawbacks in relation to relevance, accuracy as well as accessibility for all. Few of the LIPs interviewed reported using the HMCTS or MoJ websites and those who did reported they did not meet their needs. Further, not all LIPs have access to online resources and, even for those who do, websites cannot adequately substitute for the tailored legal advice that many LIPs require. LIPs reported frustration that organisations like CABx, the court service and Cafcass were not able to offer advice and advised them to seek legal advice that could not be afforded. There is a dearth of free or low-cost legal advice in the community. Family and friends could be very helpful acting as informal supporters, but the development of paid ‘professional’ McKenzie Friends was a source of real concern to judges, lawyers and Cafcass officers. As previous studies have found, the courts did little signposting to sources of support. Professional training in how to support LIPs is needed. The development of support services for LIPs and training for professionals should be informed by, and responsive to, the different needs and help-seeking approaches of LIPs. 4. Policy Implications and Recommendations (p101-125 of the Report) 4.1 LIPS after 1st April 2013: eligibility for legal aid and the ‘new’ LIPs Chapter 6 of the Report considers the policy and practice implications of the findings reported above. The chapter begins with consideration of how far the findings are likely to apply after 1 April 2013. The available evidence suggested that the majority of represented parties in the sample who were in receipt of legal aid would no longer be eligible for legal aid after the LASPO reforms. In comparison with the observed pre-LASPO LIPs, the researchers would expect that LIPs post-LASPO would be less likely to be partially represented and more likely to present with vulnerabilities which affect their capacity to represent themselves effectively and create challenges for the courts in terms of safety at court, testing, disclosure and safeguarding children 4.2 Recommendations The report identified that LIPs have considerable needs for support across several dimensions. It also identified what the researchers consider to be best practices for meeting those needs, based on the team’s review of the literature and the observations and interviews with LIPs and family justice system professionals. It has not been part of the research team’s brief, however, to analyse the cost-benefit of these proposals or to produce a fully worked-up blueprint for change. This section, therefore, summarises the broad recommendations arising from the team’s analysis of the literature and the research data. Further detailed policy and operational consideration will of course be required to determine how these recommendations could be implemented. Information needs • That all relevant family justice communications, including forms, leaflets, practice directions, templates and pro forma, are re-evaluated from the perspective of LIPs and (if necessary) redesigned with their various needs in mind. • That a single authoritative ‘official’ family court website is established with all the resources that a LIP needs in one place. • That the court’s communication with parties prior to the first hearing is used more effectively to convey important information to LIPs. • That judges are encouraged to give LIPs clear verbal instructions and guidance on process and procedure. • That the court service provides increased opportunity for face-to-face inquiries with relevant court staff and that guidelines and training for court staff are devised to facilitate information-giving whilst avoiding giving advice. Emotional/moral support • That there is a presumption that a single family member, friend or volunteer may accompany a LIP in court to offer emotional/moral support without the need to submit a formal CV. • That consideration is given to the development of a code of conduct, practice guidance or regulatory framework for paid/’professional’ McKenzie Friends. Practical support and legal knowledge • That initial legal advice to facilitate dispute resolution and, where necessary, for initial preparation for court proceedings is made universally available. • That providing support for LIPs in a consistent way in both semi-represented and non-represented cases is understood as a key element of the judicial role; and that judicial officers receive appropriate guidance and training to do so. • That measures are introduced to ensure greater availability of and access to exceptional case funding in private family law matters. • That a mechanism is introduced to enable judicial recommendation for the provision of publicly funded representation in the interests of justice. • That the MoJ consider which other forms of legal and procedural assistance outlined in this Chapter for LIPs engaged in court proceedings can feasibly be supported or implemented. Other issues • Follow up independent research is needed to examine the impact of the legal aid reforms on the types and experiences of LIPs, their impact on the court system and the effectiveness of innovations and services to support LIPs

Finding Fault? Divorce Law and Practice in England and Wales

This is the final version of the report. Available from Nuffield Foundation via the link in this record.1. Key messages The law of divorce in England and Wales has been subject to criticism for decades, most recently following the rare defended case of Owens v Owens. This major research study aimed to explore how the law is working in practice. The current law and use of fault The sole ground for divorce in England and Wales is the irretrievable breakdown of the marriage. But a divorce may be granted only if one of five ‘Facts’ is proved. Whilst many people might assume this is required, it is not necessary to prove that that ‘Fact’ was a cause of the breakdown. Three Facts are fault-based: adultery, behaviour, and desertion. Two Facts are based on separation: two years if the other spouse consents to divorce, five years if they do not. In 2015, 60% of English and Welsh divorces were granted on adultery or behaviour. In Scotland, where different procedural and related legal rules create different incentive structures, it was just 6%. Elsewhere, fault has been abolished or is just one option, and often a practically insignificant one, among several divorce grounds. The continuing problems of fault Academic research and Law Commission reviews from the 1970s onwards reported serious problems with the divorce law, including the lack of honesty of the system with the parties exaggerating behaviour allegations to get a quick divorce, while the court could do little more than ‘pretend’ to inquire into allegations. This study found that those problems continue and have worsened in some respects. Fault, especially behaviour, continues to be relied on to secure a faster divorce. The consequence is that parties often feel under pressure to exaggerate allegations or retro-fit the reasons for their separation into one of the legal Facts, even though the court’s expectations of what is required to make out each Fact is now actually very low, particularly for behaviour. The court has a duty to inquire into allegations but in practice in undefended cases only has the capacity to take the petitioner’s allegations at face value. That is procedurally unfair for the great majority of respondents who cannot defend themselves against the allegations. Parties embarking on the process might reasonably assume that the law is underpinned by a fault-based logic: that petitions should reflect who and what was to blame for the relationship breakdown. Yet whilst the law invites parties to rely on fault-based Facts, it does not require the court to adjudicate on responsibility in that way – not least because it will very often be impossible to allocate blame accurately in this context. Yet respondents on the receiving end of fault-based petitions inevitably feel cast as the ‘guilty’ party. The study found no evidence that fault prevents or slows down the decision to divorce and some evidence that it may shorten the time from break up to filing. We also found, as previously, that producing evidence of fault can create or exacerbate unnecessary conflict with damaging consequences for children and contrary to the thrust of family law policy. 10 The current divorce law is now nearly 50 years old. Its apparent rationale and operation are at odds with a modern, transparent, problem-solving family justice system that seeks to minimise the consequences of relationship breakdown for both adults and children. The need for law reform to finally remove fault The study shows that we already have something tantamount to immediate unilateral divorce ‘on demand’, but masked by an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state. A clearer and more honest approach, that would also be fairer, more child-centred and cost-effective, would be to reform the law to remove fault entirely. We propose a notification system where divorce would be available if one or both parties register that the marriage has broken down irretrievably and that intention is confirmed by one or both parties after a minimum period of six months.Nuffield Foundatio

‘So presumably things have moved on since then?’ The management of risk allegations in child contact mediation.

Author's draft version. Copyright © Oxford University Press. Final version available online at http://www.oxfordjournals.org/Over the past decade, considerable efforts have been made to ensure that domestic violence and child protection issues are identifi ed, assessed, and managed appropriately within the family justice system. These efforts follow sustained criticism that allegations of harm have been previously overlooked or marginalized within court processes, including in private law cases concerning residence and contact disputes following parental separation. In this article, however, we argue that allegations of harm continue to be marginalised in court-based dispute resolution. Our fi ndings are based on a detailed study of 15 in-court conciliation or court-based dispute resolution sessions. We use conversation analysis to examine in detail precisely how allegations are overlooked or downgraded. We fi nd that conciliators routinely ignore, reframe, or reject allegations unless there is an existing external evidence to support the claim. However, the precise way in which marginalisation occurs is contextual and interactional, shaped not least by the specifi city or persistence of allegations presented by parents. We suggest that the conciliator’s handling of allegations refl ects a particular understanding of their institutional role and tasks that centre upon settlement, contact, and case processing seemingly at the expense of risk management.Data originally collected as part of a Lord Chancellor’s Department funded project. The analysis of the data was supported by Economic and Social Research Council grant RES-000-22-264

Scaling up research on family justice using large-scale administrative data: an invitation to the socio-legal community

This article outlines the value of administrative data for family justice research. Although socio-legal scholars have extended their research beyond purely theoretical or doctrinal analyses, studies using large-scale digital datasets remain few in number. As new opportunities arise to link large-scale administrative datasets across health, education, welfare and justice, it is vital that the community of family justice researchers and analysts are supported to deliver research based on entire service or family court populations. In this context, this article provides a definition of administrative data, before outlining the potential of single, linked or blended administrative data sets for family justice research. The remaining sections of the article speak to questions that are pertinent to this particular academic community, including the distinctive contribution of the socio-legal scholar to interdisciplinary teams and the place of data providers in collaborative research. Drawing on the sociological concept of ‘publics’, the final section considers the multiple interest groups whose social licence must be secured, when personal records are used to understand the relationship between law and family life

Screening for primary aldosteronism- normal ranges for aldosterone and renin in three South African population groups

Objective. To establish normal ranges for plasma aldosterone, renin and aldosterone / renin (A/ R) ratio in South African normotensives under typical ou tpatient conditions, and to estimate the prevalence of primary aldosteronism (PA) among hypertensives in primary care settings.Design and methods. One hundred and thirty-six normotensive subjects and 154 sex- and age-matched hypertensives at three primary care clinics had measurements of blood pressure, plasma creatinine, K+, aldosterone, plasma renin activity, and spot urine for urinary Na+/ creatinine ratio. Medication was not withdrawn before testing.Results. Mean plasma renin activity in black normotensive subjects (0.95 ± 1.25 ng/ ml/ h, mean± standard deviation (SD)) was significantly lower than in white (2.09 ± 1.12 ng/ ml/ h; P < 0.0001) and coloured (1.81 ± 1.86 ng/ ml/ h, P = 0.013) normotensives. Mean plasma aldosterone in black normotensives (306 ± 147 pmol/ 1) was also significantly lower than in white (506 ± 324 pmol/1, P = 0.0002) and coloured (418 ± 304 pmol/1, P = 0.0148) normotensives. In hypertensives, there were no significant differences in renin or aldosterone levels between the three population groups. Urinary Na+ /creatinine ratios, an index of Na+ intake, were not significantly different in the three population groups. None of the normotensives had an A/R ratio ≥ 1 000 plus aldosterone ≥ 750, while 7.1% of hypertensives exceeded these levels, suggesting that they are appropriate criteria for screening for PA.Conclusions. A large fraction of black normotensive subjects had low renin and aldosterone levels compared with whites, suggesting a salt-retaining tendency in black subjects. These results have important implications for the interpretation of plasma renin and aldosterone levels in hypertensive patients. In primary care settings, 7.1% of hypertensives had biochemical results indicating the need for investigation of PA

Case of placental insufficiency and premature delivery in a Fontan pregnancy:physiological insights and considerations on risk stratification

Objectives The coexistence of two complex physiologies such as Fontan and pregnancy is still not fully understood. We aim to add a unique and essential knowledge to help our colleagues in the management of Fontan patients that undergo pregnancy as well as the fetus and the placenta perfusion.Methods and results We analyse the coexistence of Fontan and pregnancy physiology on a complex case of a woman with hypoplastic left heart syndrome palliated with a univentricular repair who became pregnant, delivered very prematurely and had atypical placental findings.Conclusion Histopathological analysis of the placenta could help us to refine the understanding of Fontan physiology adaptation during pregnancy, predict women and fetal outcomes as well as to plan a better pre-pregnancy status. However, further evidence is needed in order to reach a more solid and unified conclusion

How Do You Move? Everyday stories of physical activity

Stories can be a powerful method of exploring complexity, and the factors affecting everyday physical activity within a modern urban setting are nothing if not complex. The first part of our How Do You Move? study focused on the communication of physical activity guidelines to under-served communities. A key finding was that adults especially wanted physical activity messages to come from ‘everyday people, people like us’. This finding also reflects a wider move to use more relatable imagery in health promotion campaigns. Using a portrait vignette approach to create monologues, we set out to explore the experiences of people from diverse backgrounds living in Bristol, all of whom took part in varied leisure time physical activities but would also be considered to lead ‘normal’ lives. We aim to demonstrate that stories of such ‘experts by experience’ can contribute to how physical activity is perceived and elucidate the complex interplay of barriers and enablers in everyday experiences of physical activity

Autonomic pain responses during sleep: a study of heart rate variability

The autonomic nervous system (ANS) reacts to nociceptive stimulation during sleep, but whether this reaction is contingent to cortical arousal, and whether one of the autonomic arms (sympathetic/parasympathetic) predominates over the other remains unknown. We assessed ANS reactivity to nociceptive stimulation during all sleep stages through heart rate variability, and correlated the results with the presence of cortical arousal measured in concomitant 32-channel EEG. Fourteen healthy volunteers underwent whole-night polysomnography during which nociceptive laser stimuli were applied over the hand. RR intervals (RR) and spectral analysis by wavelet transform were performed to assess parasympathetic (HF(WV)) and sympathetic (LF(WV) and LF(WV)/HF(WV) ratio) reactivity. During all sleep stages, RR significantly decreased in reaction to nociceptive stimulations, reaching a level similar to that of wakefulness, at the 3rd beat post-stimulus and returning to baseline after seven beats. This RR decrease was associated with an increase in sympathetic LF(WV) and LF(WV)/HF(WV) ratio without any parasympathetic HF(WV) change. Albeit RR decrease existed even in the absence of arousals, it was significantly higher when an arousal followed the noxious stimulus. These results suggest that the sympathetic-dependent cardiac activation induced by nociceptive stimuli is modulated by a sleep dependent phenomenon related to cortical activation and not by sleep itself, since it reaches a same intensity whatever the state of vigilance