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Need for procedures which assist litigants in person: Ryder LJ

Court of Appeal gives important guidance on children ‘without notice’ applications

In C (A Child) & Anor v KH [2013] EWCA Civ 1412, Ryder LJ has said that “the case presents a salutary lesson to us all 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.”

He added that since April 2013 the majority of parents in private law children disputes are litigants in person and the obligation upon the court to identify and implement due process should not be underestimated.  He warned that that would take time and occupy a greater share of the court’s limited resources.

In the case the father successfully appealed an order prohibiting him from removing his son from the mother or from his primary school and which only allowed for indirect contact. The two parents had been litigants in person in proceedings in the county court in which the mother had obtained an order without notice to the father.

Ryder LJ, giving the lead judgment, made various recommendations, endorsed by the President of the Family Division, in order to ensure proper protection of respondents in without notice applications and to provide effective case management where the parties were litigants in person. He invited the Family Procedure Rules Committee to consider whether the C100 application form and C1A supplemental information form fulfilled the duty of full and frank disclosure which exists on those who seek to use a without notice procedure.

He said:

“The repeated guidance of the judges of the Family Division in relation to without notice applications and orders is both valuable and should be followed.  I expressly approve of the summaries of the same collated by Charles J in B v A (Wasted Costs Order) [2012] EWHC 3127 (Fam), [2013] 2 FLR 958 and by Mostyn J in UL v BK [2013] EWHC 1735 (Fam).”

Ryder LJ stated that the recommendations within the judgment were consistent with the recently published draft proposals for a Child Arrangements Programme.

Lady Justice Macur, agreeing with the lead judgment, said:

“The extensive catalogue of errors and repeated breach of the Family Procedure Rules 2010 and other statutory codes … serves to underline the fact that this father was denied natural justice at almost every stage of the proceedings. Lack of competent legal representation played its part. The financial and human resource cost to the court system of repeated, non effective short appointments, non focused issue resolution hearings and a consequent appeal by reason of a litigant in person’s lack of expertise is great. The potential for emotional cost to this and other parent/child relationships comprised by delay and lack of due process is inestimable.”