Party litigants, and some dos and don'ts

More than half of cases heard in the family courts in England are now reported to be conducted by litigants in person, as legal aid withers on the vine.

Here, an increasing number of reported cases seem to involve party litigants. Two recent appeal cases saw party litigants take unsuccessful appeals in child cases.

Hall v Hall, Aberdeen Sheriff Court, 23 May 2014 was notable for the sheriff principal confirming that it is competent for a sheriff to make a final order at the end of a child welfare hearing – OCR 33.22A is wide enough in its terms to permit such an approach. In this case the sheriff had decided “enough was enough” in a child case which had been allowed to proceed at a “glacial pace”.

In JM v PK, Edinburgh Sheriff Court, 8 July 2014 the party appellant, having been refused legal aid, was unsuccessful in arguing that the sheriff at first instance had failed to consider the interaction between article 8 and s 11 of the 1995 Act. The sheriff principal approved the sheriff’s finding that “article 8 cannot be prayed in aid to support a claim for contact if such contact would not be conducive to the child’s welfare”.

Meanwhile in England & Wales, the answer to the gridlocked court system is a Government commitment that from the age of 10, children will have “access to the judge” to “make clear their views in person”.

Need for finality

OCR 33.22A was also under examination where it was determined that a child welfare hearing is intended to be a “front loading” exercise, as opposed to forming a “rearguard action”.

The use of the CWH as procedural vehicle once a court has pronounced judgment after proof “ought to be limited”.

An interlocutor post-avizandum is competent only where the practicalities or mechanics of contact are to be confirmed – the sheriff could not embark on a further fact finding mission by seeking to defer disposal of a plea. A party was entitled to have a legitimate expectation of finality.

The case also serves as a reminder that a sheriff is also not entitled to refuse leave to appeal without a hearing and that a sheriff principal has an overarching power to cure an incompetent interlocutor.

An incompetent interlocutor – one which the sheriff had no power to pronounce – can therefore be appealed without leave.