By Ruth Green
“We’ve got a problem,” the clerk whispers to me outside the hearing room. It’s the first day of the final hearing of a custody dispute involving two children. A woman, presumably the mother, sits further along the bank of cold metal seating, clutching her bag nervously.
Proceedings should have started ten minutes ago, but aside from an interpreter, there’s no one else to be seen. I soon learn why. The father, who’s accused of having abducted one child and retained the other against their will in another country, has joined the hearing via video link. He’s just dropped the bombshell that he no longer has legal representation. I ask the clerk whether the hearing will have to be adjourned. “The judge will have to work out what to do,” she says.
Litigants in person are increasingly common in family courts across England & Wales, including in Manchester—where I am today—since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) stripped large areas from legal aid overnight.
Suddenly, many applicants and respondents in private law cases like this one were no longer eligible to receive free legal advice. Official figures show that between July and September 2024, 38% of private law cases had no legal representation. This is 24% higher than during the period from January to March 2013—the quarter before LASPO was enacted.
In this particular case, it’s unclear whether the father—who now resides in the EU—is still eligible for legal aid. What is known, is that the mother, who lives with the children in Greater Manchester, is also representing herself and has already been appointed a qualified legal representative (QLR) by the court.
The biggest issue lies in the fact that both parties allege the other has committed domestic abuse, which prohibits them from cross-examining each other. It’s too late for the court to appoint a QLR for the father that day, so it’s up to the judge to decide whether to adjourn the hearing—which could put the children’s welfare at risk—or identify a workaround that ensures everyone has a fair hearing.
“Both parties agree delay is not in the best interests of the children,” says Her Honour Justice Singleton KC. “We need to strive to find a route which is rational and logical through the chaos of this.”
She offers the father the opportunity to draft a list of questions that she can select from and put to the mother, which he accepts. He is still able to cross-examine the other witness—the children’s social worker.
The need for a simultaneous interpreter to translate everything for the father, combined with delays on the video link, makes the interactions in court stilted and time-consuming.
The social worker is dismissed and asked to return the following day to give evidence. When the social worker finally does take the witness stand, the judge has to ask the father repeatedly not to interrupt or talk over him or others and to keep his questions short and targeted.
Remote hearings and the ability for parties and witnesses to appear via video link have become commonplace since COVID and helped clear the court backlog. Between July and September 2024, it took, on average, 41 weeks for private law cases to reach a final decision—down 3 weeks from the same period in 2023. However, this hearing clearly shows that remote justice can, at times, make for a frustrating process for all involved.
Outside the hearing room, the interpreter tells me she had no idea about the background of the case before today. “Typically,” she says, “there’s a consultation beforehand with the client to understand the basic facts.” In this instance, this simply hasn’t happened.
As a journalist, I know how challenging it is to step into a hearing room and get to grips with a case quickly. It seems unimaginable as the sole interpreter simultaneously having to keep on top of what’s being said by the judge, the mother, the QLR, the social worker and the father. I say as much. “I enjoy it,” she responds with a smile, but admits these cases can often be “emotionally charged.”
After what the judge terms the “poisonous breakdown” of the marriage, the court hears that a series of events took place, including the alleged retention of the eldest child and abduction of the youngest child abroad by the father, allegations about the mother’s parenting and psychological state, and a minor bump to the youngest child’s head, which led to the father making a referral to social services.
The mother also alleges elements of abusive behaviour and coercive control against the father and that he launched divorce proceedings abroad under a false address.
The father claims the mother has turned the eldest child against him and discouraged him from speaking to his father. The judge asks the social worker pointedly whether he felt the eldest child’s feelings had been influenced by their mother. “No, Your Honour,” he replies robustly. He adds that after the referral to social services, it was clear that the mother was “constantly afraid” that the father would make new allegations to the authorities.
The judgment is handed down just under a month later. Her Honour Justice Singleton KC orders that the two children remain in the mother’s care. The father, who is still based abroad, is permitted video contact with the youngest child under set conditions, with the older child deemed an age appropriate to manage his own interactions with his father.
The court order also states that the father cannot remove either child from the care of their mother, their schools or England without the mother’s written consent. Failure to comply could result in him being found in contempt of court, imprisoned or fined.
The case sheds necessary light on the types of curveballs that are regularly thrown at the family courts in private law cases. It’s unclear whether the father will appeal, but the judge’s decision seems a fitting conclusion that puts the children’s welfare above all else.
Blog post published 20th January 2025
This is the third part of a three-part series. For the other posts visit our main family court blog page
If you’re a journalist or legal blogger and are interested in being paid to contribute to our Family Court blog please email info@righttoequality.org