As a barrister who works in the Family Court dealing with Private Children Law on a daily basis, it may seem that in writing this article I risk biting the hand that feeds me. Why would I question the need for litigants in the Family Court to hire lawyers? What do I stand to gain? Or rather, what might I stand to lose by even posing the question in a public forum? As barristers, part of our job, I have always believed, is to strive to make the justice system accessible and understandable. I keep this at the forefront of my mind when I write any article, and this is no exception.
The reason I have chosen to pen a few words giving my opinion on the topic is that the reality of litigation is that it is expensive. It is far too often beyond the financial means of a parent to employ solicitors and barristers to fight their case for them from start to finish. After all, why should it cost the earth to be able to have a relationship with your children, or to ask the courts to keep them safe? I have great sympathy with those people who are forced to spend what savings they have or incur debts that they will find hugely difficult to pay back, just to exercise their Article 8 right to a safe and secure family life. Shouldn’t that money be better spent on the children?
If the question I have asked in the title can be answered in one sentence, then the answer is this: Yes, if you can afford it. There is no substitute for having someone in court to represent you. Professional legal representatives know the procedure, they know the law and they know the issues in a case. They provide effective legal advice to help make the process of navigating the court system as painless as possible and are often invaluable in securing the best possible outcome.
Representation at court is usually funded either through legal aid or by paying privately. Your first thought may be ‘Wait… Can I get legal aid?’ In some circumstances, yes. Law firms who undertake legal aid work are the first port of call for advice as to whether this is possible for you. This article instead focuses on the alternative question ‘What if I can’t get legal aid?’
The traditional route to representation in the legal system has been paying a solicitor to prepare your case and then a barrister to represent you at court. A question many court users have is what to do if you simply can’t afford the fees of both solicitors and a barrister? Is that the end of the road? Should you give up? Well, apart from the sentiment held by many parents that part of parenthood is never giving up on your children, the answer remains no. The options are evolving.
The fact is that courts are very familiar with dealing with what lawyers call ‘litigants in person’; that is to say parents who do not have lawyers. Judges and Magistrates are used to having a parent turn up in court without legal representation and are invariably sympathetic to the difficulties in navigating the court system. They will explain clearly what it is happening at court and what you have to do next at the end of each hearing. So, take a sigh of relief.
There are even systems in place to assist when it comes to cross-examination. The most common example is in cases where one parent is accused of domestic abuse. They are likely to be prevented from cross-examining themselves the parent who has made the allegation, or indeed being cross-examined by the parent who makes the allegation. Since 2022 Qualified Legal Representatives (referred to in courts as QLR’s) are available to assist. A QLR is a barrister who conducts cross-examination instead of the parent who is accused of domestic abuse. Their duty is to the court and their purpose is to ask the questions that need to be asked so that the court has all the information it needs to make a decision. A QLR is not always available, the simple fact being that there are more cases in the Family Court than there are QLR’s. In those circumstances it is the usual course of events that a written questions can be sent to the court in advance of the hearing by the parent facing the allegations and these asked of the other parent during the hearing by the court.
The other resource available to parents who cannot afford lawyers is their own time and efforts. A very quick internet search will, for example, reveal the ‘Welfare Checklist’ (factors to be considered by the court in making decisions regarding where a child will live and/or how much time they will spend with each parent) and there are articles beyond count available online which will prove an invaluable source of information. So, if money makes legal representation cost-prohibitive, all is not lost.
Most commonly I find that many parents can afford something but not perhaps the ‘whole legal package’. I should stress that it is written nowhere that if a parent employs a lawyer, then they must have a lawyer for the whole process. For some hearings a lawyer may be more important than others; fact-finding hearings or final hearings for example.
Another, more affordable, option is often what is known as Direct Access. Direct Access is a way that a parent can secure the services of a barrister without the need for them to also hire a solicitor, thus making the process cheaper. A barrister instructed on Direct Access can be asked to do as little or as much work as is affordable, from simply providing advice all the way to representation at each and every hearing. Many barristers (me for example!) will offer an initial free consultation to see if a parent is someone who is suitable to instruct them on a Direct Access basis (there are certain checks that must be done before a barrister accepts work from a Direct Access client), but other barristers may still charge for this initial meeting.
This article is not designed to go into the details of Direct Access work, but simply to make clear that this option exists. Becket Chambers has a large pool of barristers who are Direct Access qualified and somebody reading this article from the Kent/Sussex area might feel than an enquiry email to clerks@becket-chambers.co.uk would be well worth it. Nothing ventured, nothing gained.
To sum up, legal representation, to whatever extent it can be afforded, is always preferential to ‘going it alone’. But hopefully, for those people reading who do believe that they are likely to end up representing themselves, these few words will be ones of encouragement.
