3 Legal Representation
(i) Solicitors, Legal Executives and Barristers.
Solicitors and Legal Execs work in solicitors’ offices and may be employed, or partners (owning the business), where most barristers, for our purposes, are self-employed. They work in ‘chambers’ which means, essentially, a big house with lots of rooms, where each barrister works independently and runs his or her own business. These chambers are run by barristers’ clerks, who, unlike solicitors’ clerks (now called Legal Executives) are not legally trained. The job of the barrister’s clerk is to get work for the barristers mostly by chatting up solicitors who put work the barristers’ way. The clerk also negotiates the barrister’s fee. A growing trend in recent years has been for Direct-Access barristers – barristers who will work for you without you having to go through a solicitor.
There is an astonishing level of ignorance amongst family lawyers about PA. This is compounded by some lawyers being slow, ineffectual, expensive or spineless. Or some horrible combination of the above. Education is needed, as well as a re-evaluation of their world view. There are, of course, some good lawyers out there, but they are disturbingly difficult to find. The Law Society points us to ‘specialists’ in family law, but actually, these are merely solicitors that practice family law. They are not necessarily any good at it.
One thing to try is to look at the decided cases, and see who the lawyers were. The solicitors and barristers are usually named at the beginning of the cases. It is perhaps reasonable to suppose that the lawyers that acted in these cases know something about PA. STOPPA cannot, at this stage, recommend any particular lawyers. Remember too that your choice should not necessarily be based on the firm of solicitors, but the particular fee-earner – you can get a great Legal Exec that specialises in PA at a small firm in the country, or a hopeless partner in the City that hasn’t got much of a clue. Research the individual as well as the firm.
A big advantage to using a lawyer in a lot of cases is that, whilst you and your ex may not be able to agree about anything, your lawyers might. However, in PA cases, the hostility of the AP is usually so implacable that even legally-trained intermediaries might not be much use.
TOP TIP: When using lawyers take care about fees. This is easier with a barrister as fees are agreed in advance – you pay on a ‘job’ basis, so much for a hearing, so much for a conference, so much for written advice, and so on.
Solicitors on the other hand, charge on an hourly basis. The hourly rate can vary from county to county and town to town, as well as by the seniority of the ‘fee-earner’, from about £150 per hour to maybe £250 an hour, more in London. Fee-earners can be any employee – a junior clerk, a trained Legal Executive (with or without much experience), an assistant solicitor (with or without much experience), or a partner (usually experienced). The usual rule is that you get what you pay for, as in everything. But, as in the rest of life, it is quite possible to get cheap and good, and expensive and bad. Do your research. Talk to the lawyer. Ask him/her some questions from our Guide to Lawyers page. If you are not satisfied, move on. Do not be intimidated. A lawyer is like a tradesmen in this respect. YOU are the client. YOU are the boss. It’s YOUR money!
When you have settled on a lawyer, agree, in writing, an up-front fee of say £1,000, NOT TO BE EXCEEDED WITHOUT YOUR WRITTEN AUTHORITY. Then, when that threshold is reached, agree another £1k and so on. Keep control of fees.
(ii) McKenzie Friends. These are not trained lawyers, but will help you with your case. They are cheaper than lawyers. STOPPA has no direct experience of McKenzie friends, and makes no comment on their competence. However, it is probably safe to assume, as with lawyers, that there are a lot of incompetent ones out there, and no real way of telling, until you have tried them, whether they are any good. But an experiment with a McKenzie friend will at least be cheaper than an experiment with a lawyer…
TOP TIP: As with solicitors and barristers, keep control of fees. And, although these guys are not lawyers, use the Guide and satisfy yourself that they are competent.
(iii) Representing Yourself. (Being a ‘Litigant in Person (‘LIP)).
The numbers of LIPs has increased in recent years, mostly due to the lack of availability of Legal Aid. For example, the number of private law disposals where both parties were represented fell by nearly 40% in April to June 2014 compared to the same quarter the previous year.
There are some big pros here, and big cons. The pros are these – firstly, you know your case, and your child, better than anyone else. Next, you cost nothing! Your only outlay will be for court fees, and maybe for a direct access barrister occasionally. Finally, you care. On the minus side of the equation, you have no legal training, and that might cause delay. Additionally, using a lawyer or McKenzie friend should mean introducing a level of professional detachment, when you are going, necessarily, to be emotional – and that is usually not helpful.
TOP TIP: If you represent yourself, keep it brief. Bear in mind that the judge is going to know far more about both law and procedure than you do. Also judges are, of course, intelligent. Don’t bore them to death. It is usually better to just let the judge do the talking and to ask you questions when she/he needs to. The only thing you need to contribute really is particular details of your case – something of course that the judge will know nothing about. Avoid psycho-babble and technical jargon and referring to case law. Wait for him/her to ask questions. Usually, at the end, a good and fair judge will ask if you wish to add anything.
(iv) Using a ‘Direct Access’ Barrister. It may seem odd to many people that, up until recently, you could only get access to a barrister via a solicitor. It’s a bit like calling a cab, and having to pay the taxi driver, as well as a navigator sitting beside him! It is now possible to conduct your case yourself, but get a Direct Access Barrister to ‘parachute in’ when you need him or her. This is a fairly attractive option, because you get the objectivity and expertise (hopefully) of a lawyer, whilst keeping costs to a reasonable level.
TOP TIP: As with solicitors always be respectful and polite, but remember that YOU are in charge, and put them to ‘proof’. Are they really any good? Just being a barrister means nothing. They need, as do solicitors, to specialise in PA. Use our Guide to Lawyers.
(v) Legal Aid. Legal Aid means the State paying your lawyers.
Legal Aid is not available for family cases, except in extremely limited circumstances – if there is a child-protection issue – but as social workers simply cannot see PA even when it is staring them in the face, (and not taking it seriously even if they do) you will almost certainly not get backing for your application for Legal Aid.
Lawyers will have you believe that reinstating Legal Aid (or ‘lawyers’ aid’ as some have (unkindly?) called it) for these cases will solve all the problems – problems that are caused by McKenzie friends and LIPs. It is possibly true that a lawyer will be more competent than we TPs, but most of the older disgraceful PA cases have managed to reach their sometimes-ignominious conclusions with lawyers involved…
Reinstating Legal Aid would be welcomed by STOPPA, on balance…just. See our views here.
But the biggest cause of our problems is ineffectual judges, and reinstating Legal Aid does not address that. Our proposal, however, that an inquisitorial system is used, at least at the start of the case but possibly throughout, completely by-passes the delay and expense inherent in using lawyers, most of what CAFCASS do, and experts. So, not only would it be better, it will save the taxpayer money.
As you will see, we recommend identifying PA cases at the start by triage, with a quick fact-finding hearing and a CAFCASS safeguarding report, and, in essence, to leave these cases to judges…provided always that they judge!