If you cannot resolve a dispute over parenting with your former partner between yourselves you only have a handful of options available, and limited choice as to which you use.
The worst, by far, is full scale litigation through the courts; we certainly don’t recommend it, but you may be forced down this route against your will. If you do end up litigating the first decision you must make is whether to be represented in court by a solicitor, possibly paid for through legal aid if you qualify, or to represent yourself, preferably with the assistance of a McKenzie Friend. Don’t make that decision until you have read the rest of this guide.
Arguments against using a solicitor
There are arguments both for being represented by a lawyer and for representing yourself. Many people believe that self-representation – as a litigant-in-person – is the best option, but it is not for everyone. Not only do you need to become your own lawyer, understanding the law and case precedents and how they relate to your own case, but you also need to be able to stand up in court and present your case calmly and clearly in the most emotional and traumatic episode of your life. If there are complexities in your case, or an unusual feature, you are better advised to seek out a lawyer, if only for advice on that particular issue.
There are some very good reasons why you should not use a solicitor:
- The first duty of a solicitor or barrister is to the court and not to you. They may, for example, disclose things about you to the other side which are potentially prejudicial to your case. If you don’t want these things disclosed, don’t tell your lawyer.
- The best advice for a parent who is about to be excluded from their child’s life is usually to act quickly, to get in their petition first (or at least cross-petition), to defend false allegations and to make a residence order before or immediately after separation. This is the advice solicitors will usually give mothers; it may not be best for children but it is best for the client. When dealing with fathers, however, solicitors will invariably advise against this course of action, saying, don’t act precipitately or provocatively, don’t rock the boat, be placatory, sit it out and see what develops.
- If you instruct a solicitor to act for you, you are handing over all responsibility for handling the case. Once they are on the record as acting for you they then have a professional obligation to do things like answer correspondence or they will face sanctions from their governing body. Your lawyer will actively discourage you from communicating with the other party. Unavoidably relations between you will break down, positions will become polarised and entrenched. The longer this continues the worse it gets; eventually resolution will become almost impossible to achieve. This will also put the costs up. If you want to save money, do not instruct them to act for you, and simply use them for things you cannot do or do not understand yourself.
- Solicitors will only act on your instructions, though they may not make this clear to you, so you can be waiting for months for some action they will not take until you specifically ask them to.
- You really can represent yourself and fill out the forms yourself – you do not need a solicitor and will be wasting time searching for a ‘good’ one who will represent a parent in your situation. Tomorrow they will be representing a parent in your ex’s situation.
- Solicitors are hugely expensive, between £200 and £500 per hour, and they charge in units of 6 minutes: a 7 minute phone call will be charged as 12 – i.e. £40 to £100. A letter can cost £25 for the first page and £12.50 for subsequent pages, so solicitors will double-space everything and use larger fonts to ensure the maximum number of pages. A year in the Family Court can easily cost between £10,000 and £20,000.
- Often you will not actually be paying for a solicitor, but for a ‘legal executive’. These people are not qualified solicitors, though they work under the supervision of a solicitor and may become solicitors in due course. They lack the training and experience of a solicitor, and it seems to be the case that litigants are commonly misled into paying for their services in the belief that they are paying for someone better qualified. They are regulated by ILEX rather than the Solicitors’ Regulation Authority. Note: that it is an offence to pass yourself off as a solicitor but not as a lawyer.
- Solicitors adopt the ideology that divorce is always equally the fault of both parties: there is for them never an innocent or wronged party; concepts such as adultery, unilateral divorce or the breach of marital vows are meaningless and anachronistic.
- Solicitors conform to the political consensus that rising rates of fatherlessness result from fathers abandoning their children; as far as your solicitor is concerned, if you turn up in court pleading for contact with your children, you have brought it upon yourself.
- Solicitors give advice which conforms to the artificial distinction between the contact and the custodial parent; it will never be the best advice for you in your case. They will recommend contact, for example, when shared custody is more appropriate.
- Many solicitors, even if you are paying their wages, will believe that the surest way to ensure the ‘best interests of the child’ is for the other parent to have residence, and for you to have only contact at best.
Cashing in by keeping quiet
In March 2007 the National Audit Office (NAO) unleashed a devastating report into the integrity of family law solicitors. Their report for the Legal Services Commission – which provides taxpayer-funded legal aid to litigants – was prepared as part of the NAO’s remit to ensure that taxpayers’ money is being spent accountably. The report found:
- that of 150,000 disputes taken into the Family Courts between October 2004 and March 2006 only 19,000 (12.7%) used mediation;
- Legal Aid funded solicitors were failing in their duty to advise their clients of the availability of mediation;
- the average cost of legal aid in non-mediated cases involving children was £1,746, compared with £726 for mediated cases, representing an additional annual cost to the taxpayer of £74 million;
- non-mediated cases were taking an average of 435 days to resolve, compared with 110 days for mediated cases.
In some jurisdictions, such as Australia, New Zealand and Norway, ‘the benefits of mediation are regarded as sufficient to justify making mediation compulsory for separating couples who have disputes over custody of children’. Not here: solicitors put profits before the interests of their clients, steering them away from cheaper mediation into costly and protracted court battles. Edward Leigh, chairman of the Commons Public Accounts Committee, responded that they were ‘cashing in by keeping quiet’ [2]. He urged a crackdown on fat-cat lawyers who were ‘happy to jump straight into the courtroom, leaving the taxpayer to pick up the bill’ [3].
A further report in 2009 showed that solicitors were over-claiming by £18.3 million for the work they had done; Edward Leigh said [4],
There is something particularly unsettling about this because the overpayments are as a result of solicitors making claims for payment against the wrong kind of work -- resulting in their receiving more money than they are due, or for claiming payment for work without evidence that it is eligible for legal aid support.
Your solicitor is an officer of the court and as such has a duty to the court and not just to his client; you are one case, the court is his livelihood. If you are publicly funded he owes a duty to the taxpayer and if he believes that you have less than a 70% chance of success then he must either withdraw from the case, or ask you to change your instructions to him: he has a theoretical responsibility to spend public money effectively. Following a ruling by Elizabeth Butler-Sloss in October 2003 solicitors are also now obliged to report any tax evasion which might emerge in divorce proceedings, for example paying a tradesman in cash.
It is not unknown for barristers to stand up in court and, just when a parent expects her case to be put, to tell the judge, often without asking for directions, that they are no longer accepting their client’s instructions. The hearing must then be adjourned to give the parent a chance to find alternative legal representation, and if she is publicly funded and her original barrister has advised the Legal Services Commission, she will find that impossible. She will also find her former barrister has absconded with all her legal papers, and that she will have to pay to have them returned.
Having said that, there may be rare circumstances where you cannot get the specific advice you need from any other source, and a solicitor may be your only option. In that case, use them for that specific question, while continuing to represent yourself. There are also specific types of case in which legal advice can be helpful, for example, when social services are threatening to take a child away or where you have been accused of causing non-accidental harm to a child.
Litigants in person
A Litigant-in-Person (LIP), also known as a Self-Represented Litigant (SRL), is a party to a case who appears at a hearing without representation by a solicitor or barrister. This may be because they can no longer afford such representation, because they have been refused Legal Aid, or because they believe that such representation will not be in their best interests.
Because the practice loses them money, and few professionals welcome amateurs, solicitors are dismissive of LIPs, and refer to them privately as ‘Lunatics in Person’. Generally the legal profession – including the judiciary – don’t like them, although Mr Justice Munby said in a submission to the Commons Constitutional Affairs Committee that he found it easier to settle cases when solicitors were not involved and the litigants appeared in person, ‘What you are getting is the facts as they see it without the assistance – and some people might put the word in inverted commas – of lawyers’.
In many situations representing yourself is your best option; you will save a small fortune and be in control of your case. The Court will not expect you to be as familiar with the law as a legal professional, but will expect you to put your case clearly. You must be able to be objective about your case – not always easy in such an emotional area – and to understand the legislation and case law. With the right support from an internet forum like Wikivorce and from McKenzie Friends you will be surprised by what you can achieve.
If you decide to go the LIP route you may need to communicate directly with your children’s other parent. If you have to visit them – for example to serve documents – take a witness, preferably a friend of the same sex as yourself; if you phone, record the conversation and then confirm the conversation in a letter. If you do not take these precautions you will open yourself up to accusations of harassment or domestic violence. Log every visit and conversation in your chronology.
[1] The National Audit Office, Legal aid and mediation for people involved in family breakdown, 2 March 2007
[2] Robert Verkaik, Independent, Divorce lawyers ‘put fees before clients’, 16 October 2007
[3] Matthew Hickley, Daily Mail, Divorce lawyers ‘steer couples to court for profit’, 2 March 2007
[4] Lawyers overpaid £25m in legal aid, finds National Audit Office, Daily Telegraph, 29 October 2009
