All parents in care proceedings should qualify for non means and non merits tested public funding i.e. the State will pay the costs of your solicitor or barrister.
Other people who want to be involved in care proceedings, such as grandparents or step parents may not get any public funding. What happens if the cost of paying for lawyers privately is out of your reach?
In this post we will will consider:
- People who are confident about representing themselves
- What help is out there for people who are NOT so confident?
More people are going to have to represent themselves in court.
There is recognition that the legal landscape is changing – after the Legal Aid, Sentencing and Punishing Offenders Act 2012 [LASPO] more people will no longer qualify for help to pay for their legal cases. There are concerns expressed by many that this will lead to serious injustice; see for example the comments of the President of the Family Division in Q v Q  where private law proceedings had to be adjourned because the father had no legal representation.
The President commented in April 2014:
In the courtroom we must adapt our processes to the new world of those who, not through choice, have to act as litigants in person. We need to think anew about the appropriate roles in the court room of McKenzie friends and other lay advisers. We will need to make our judicial processes more inquisitorial. Do not misunderstand me: I am not advocating adoption of the continental inquisitorial system. Our system, and for good reason, is essentially adversarial, even in the Family Court.
But it is a system very different from the adversarial system of yore. Then the judge functioned as little more than an umpire, adjudicating on whatever claim the litigant chose to bring, the only limitations being the need for some recognised cause of action and the requirement that the evidence had to be both relevant and admissible. Those days have long since gone.
Modern case management imposes on the judge the responsibility of deciding what issues will be argued and what evidence will be permitted. The process before the judge may still be adversarial, but it is a dispute fought in accordance with an agenda set by the judge, not the parties. But that, of course, assumes that the parties are represented. Where they are not, then the judge must take a more active role. The hearing is more likely to produce the right and just result if the judge adopts a more inquisitorial approach.
So what are the options available for the person who cannot afford or does not wish to instruct a family lawyer?
- You will either feel confident taking the case forward yourself – consider being a litigant in person
- or you need some help – consider McKenzie friends, public access barristers or other support organisations.
Further advice from a Lay Advocate
Here Ian Julian, a Lay Advocate since 2003, describes the various options that are available to give you help in court.
- Solicitors and Barristers – These can cost a considerable sum of money but will be able to prepare your case and present it before the Court. Many Barristers offer a Direct Access service, which can provide you with an Advocate in the Courtroom but without the cost of Solicitors preparing, drafting and advising you along the way. This may suit someone of limited means who can handle their own paperwork confidently.
- Litigation Friends – These come in many guises and can be more or less helpful and / or experienced. Common Law provides that a person may have any person speak on his behalf in a Court of Law. Courts will want you to have every reasonable assistance and will recognise that the Courtroom is an alien environment for most people in stressfull circumstances. While you may be confident and it can be helpful for the Judge to hear from you directly, it may also be useful to have some additional help to explain what you want and why.
- you may need a Litigation Friend to assist you in understanding the proceedings if you have a disability. This can be in addition to your lawyer (more often now that the Official Solicitor is less available);
- McKenzie Friend – in hearings held in private, the Guidance for Family Courts allows the assistance of a McKenzie Friend (to quietly advise you, take notes and to assist you with papers)It is at the Judge’s discretion to allow your assistance and the presumption is in favour of a McKenzie Friend unless there is good reason to refuse you (it should not be an antagonistic relative for example).
- If granted Rights of Audience, you may have a Lay Advocate who will present your case to the Court as a Barrister does.The Judge may permit you to have a Lay Advocate if he is of good reputation and can assist the Court in dealing with the proceedings effectively. This can save time and expense for everyone and an experienced assistant will help the Court by guiding you as to what is possible and what is unhelpful.
You should write to the Judge in advance asking permission for the assistance you want to use and inform the other Parties. Your Friend should send a CV to the Judge, which will assist his decision.
Only Solicitors are permitted to “conduct litigation” (i.e. hold client monies or sign letters on your behalf). Direct Access Barristers cannot “conduct litigation” either.
I am confident about representing myself – Litigants in person
Also known as ‘self representing litigants’. If you feel confident about your case and speaking for yourself, it is perfectly possible to present your own case in court.
Here is some useful advice from the Family Separation Hub about assertive communication; it is important to be neither aggressive or passive but assertiveness can be learned.
Here is some advice from Sarah Memmi who is a Community Legal Advice and Representation Service (CLARS) adviser at the Bristol Civil Justice Centre.
I am representing myself but I don’t know where to start nor what to do
The Court environment can be overwhelming and rather intimidating for anyone who is unfamiliar with it. I advise and am granted rights of audience (permission to address the court) on a case-by-case basis to assist Litigants-in-Person (LIPs) at the Bristol County Court and Family Proceedings Court and I have helped dozens of LIPs at various stages of proceedings. The Bar Council has issued guidance for those who are to represent themselves, which you can find online. The Guide covers Family Law starting at page 44. In light of this guidance, it may be that the most helpful way I can provide readers with useful information is by going through typical concerns I have come across with LIPs approaching me for advice.
Coming to Court
I think the very first question you will have as an unrepresented party will be “what am I here for?” or “what is going to happen today?”. Lawyers and everyone regularly involved in court processes know the answer and will be able to guess based on documentation you have received from the court. You will generally find your answer in the letter you have received asking you to attend court. The time allowed for the hearing will be your indication. The general rule is that any hearing lasting up to half an hour will be a “directions hearing”, whereby the Judge will tell you what the next steps are (LIP Guide pp.12,46). That means what you will have to do, what the other party will have to do and what a third party will have to do.
For example, a common direction is for a party to provide a witness statement, explaining what their position is and why the court should trust that this position is right. The other party will generally have a chance to respond by providing a statement in response. A hearing lasting longer usually means that evidence will be given and submissions (arguments) be made. As the court is however rather flexible, do not be surprised if the Judge decides to dispose of the matter here and there and to hear evidence and/or final submissions if satisfied that it would be right to do so.
Whilst you are waiting to be heard by the Judge
Don’t forget to let the ushers know that you have arrived. If you have questions, don’t hesitate to ask them, and remember to be nice to them: they may even tell you what mood your Judge is in today. You will generally be listed for 10am and may wonder why you are still waiting at 10.30am: most cases are listed for the same time, it is the order in which they will be called that determines when you are likely to go in. The ushers can be very helpful then and let you know how many cases are before yours.
Also, and I think most importantly, bear this in mind: if the solicitor/barrister for the other party approaches you prior to the hearing, do not panic and remain courteous. Firstly, they have nothing against you personally, they are merely voicing their clients’ interests with their legal knowledge and removing all unnecessary (for the purpose of the proceedings) emotions in doing so;
Secondly, they have a duty to explain to you what the procedure is and answer your questions if these are neutral.
Remember that negotiation outside of the courtroom is part of the process, it is not befriending the enemy.
Inside the courtroom
Judges are human beings like you and me. Even though they are making decisions which will have an impact on yours and the child(ren)’s lives, the Judges and you will share the same priority: the welfare of the child(ren). The Judge is not for or against you, but ensuring that the child will be safe and well.
I know that most LIPs are anxious to know what will happen in the courtroom. In terms of procedure, the Applicant will open by explaining what the hearing is listed for and what they seek to achieve. The Respondent will add any facts omitted by the Applicant and explain their position. Questions will be asked by the Judge and evidence may be given orally. The general procedure for oral evidence is that witnesses for the Applicant will be called first, any written evidence will stand as their evidence-in-chief (what they claim to be true) and they will then be cross-examined (i.e. their evidence will be challenged) by the Respondent. The Respondent’s witnesses will then be subject to the same procedure. When all the evidence has been given, the Respondent will make a closing speech, followed by the Applicant. The Judge will then give a judgment and make the appropriate order.
Another general concern is that you will not have received legal advice whereas your direct opponent is a solicitor/barrister. The Judge will give you credit for your position as they have to ensure that both parties are on equal footing. In doing so, the Judge may attempt to ask the opposing party what would have been asked on your behalf had you been represented, so as to make sure that they have the “full picture”.
A final and important point: if there is anything you do not understand, ask the Judge to explain as many times as needed; lawyers tend to forget that this jargon isn’t commonly used. It is essential that you understand what happens in court and the terms of any order made.
Guidance from the court on how to treat Litigants in Person
This was discussed by Ryder LJ in the case of Re C (A Child)  at para 14:
The practice that is recommended is that litigants in person are sworn at the outset of the hearing so that their representations can be used as evidence. They should each be asked to set out their case (preferably without interruption and in a fixed time window) and they should be encouraged by the court to answer any relevant propositions put by the other party. The court should identify the key issues for them and put the same issues to each of them at the beginning or end of the statements they are invited to make.
The court should ask the applicant to reply to any matters he or she has not covered before making a decision. Questions which either party want to ask of the other party, assuming that the representations are to be relied upon as evidence, should be asked through the judge where the questioner is a litigant in person so that inappropriate control is not exercised by one party over the other and irrelevant questions can be avoided.
I don’t want to represent myself – I need some help
In this section we look at
- Public/Direct Access Barristers
- McKenzie Friends
- Charities and other forms of support
Public Access Barristers
A useful compromise between paying solicitors or going it alone, could be to consider a Public Access barrister who you can directly instruct to go to court with you or provide written advice. You will be responsible for the paperwork but you will get help at court hearings.
This might be particularly helpful if you feel confident representing yourself in shorter court hearings but would like some help or support at the main hearing. The Bar Council Public Access directory can be found here.
Rather than be a litigant in person, another option is to be assisted by a ‘lay advocate’ or a ‘McKenzie friend’. At the moment, neither lay advocates nor McKenzie friends are widely used in care proceedings but this may become more common.
- The ‘Court without a Lawyer’ website provides a definition of McKenzie friend here, as well another advice for those going to a family court without a lawyer.
- Visit the McKenzie friends website for more information or the Society of Professional McKenzie Friends.
- See the practice guidance of July 2010 relating to McKenzie friends in the family courts.
- Chose your McKenzie friend wisely – read about what happens when it goes wrong
What a McKenzie Friend May Do:
- Provide moral support for the LIP
- Take notes
- Help with case papers
- Quietly give advice on:
- points of law or procedure;
- issues that the litigant may wish to raise in court;
- questions the litigant may wish to ask witnesses.
Are there any risks associated with using a McKenzie friend?
Here is a good blog post by Richard Moorhead about some of the concerns about McKenzie friends and the discussion around the pros and cons of their charging for services. Do be careful about who you chose and be wary of anyone who seems to be promoting a particular agenda. Just as with lawyers, the quality of McKenzie friends can vary but also they are not subject to the same kind of training and regulation as lawyers.
Richard Moorhead discusses the Legal Services Consumer Panel Report about fee charging McKenzie Friends and comments:
What then of the risks posed by McKenzie friends? The Panel’s report points out that, “Many of the risks consumers face when using a fee-charging McKenzie Friend are also present with lawyers.” I agree. Research has shown time and time again that qualified lawyers, particularly when doing low value, low status work, do not perform at the levels of professionalism that they profess. Yet it is also likely to be the case that there may be (as the Panel notes), “particular risks associated with fee-charging McKenzie Friends.” They risk:
- being agenda-driven (which may be one reason why the McKenzie friends tended to emphasise that their clients were male – fathers groups are active in the area and pose particular risks if representing women). It is also worth noting that, When the Panel asked McKenzie Friends, “what worries them about some other McKenzie Friends, the most common answer was those “with an axe to grind‟ who “exploit vulnerable clients as puppets to pursue a personal agenda.”);
- providing poor quality advice (though lack of training, experience and support – though experienced MFs may provide good quality);
- not understanding the limitations of the McKenzie Friend role (straying into conducting litigation seems a particular risk);
- escalating fees (as we have seen they often charged on an hourly basis);
- breaches of privacy (being less careful with their client’s information); and
- struck-off lawyers acting as McKenzie Friends (of which they said, “although rumours persist, we found no hard evidence of this is happening in practice”)
Charities, volunteers and other groups
The Personal Support Unit is a charity which currently operates in 7 courts in Birmingham, Bristol, Cardiff, Leeds, Liverpool, Manchester and the Central Family Court in London. As their name suggests, they provide you with emotional support during the proceedings. They can provide you with a volunteer to guide you round the court building, go to court with you and support you during the hearing. They cannot offer you legal advice but they can give practical advice about what happens in court.
Citizens Advice Bureau - a charity that provides free advice to help people with their legal problems. They offer advice from over 3,000 locations in England and Wales. Visit their site to see if you have a local CAB.
The Bar Pro Bono Unit is a charity which helps to find pro bono (free) legal assistance from volunteer barristers. If you have cannot afford to pay and have no public funding, it can help with:
- advice, representation and help at mediation
- cases in all legal areas
- cases where proceedings have not yet been started
- cases in all tribunals and courts in England and Wales
BUT you cannot self refer, applications will only be accepted if they come via a referrer, such as your MP, a lawyer or an advice agency.
The Family Rights Group is a charity in England and Wales that advises families whose children are involved with or need children’s services because of welfare needs or concerns. It has an excellent and comprehensive advice service and you can call its advice line on 0808 801 0366
Parents Against Injustice (PAIN) are a voluntary organisation, run and funded by volunteers who are provide help and support to families caught in the care system. You may need to exercise some caution here as the site is linked to the former MP John Hemming who advises parents to leave the country rather than engage in care proceedings. As we have explained in some detail in posts concerning ‘forced adoption’ we do not think that pursuing a particular agenda about the alleged corruption of the family court system is of much help to parents.
There may be other organisations in your local area which it would be a good idea to contact. Please let us know of any others you think it would be helpful to publicise.
Please also see our Legal Advice page in Links and Resources.
Practicalities – court fees and statements
Payment of court fees to issue an application
Even if you don’t have to pay a lawyer, you may have to pay money to get the court to issue your application.
There is information about this on the Ministry of Justice website.
Also see their leaflet – Court and Tribunal Fees – Do I have to pay them? You don’t have to pay if you are receiving the following benefits:
Income-based Jobseeker’s Allowance
Income-related Employment and Support Allowance
Universal Credit with gross annual earnings of less than £6,000
State Pension Credit – Guarantee Credit
Scottish Civil Legal Aid (not Advice and Assistance or Advice by Way of Representation)
Help with writing a statement
Some courts will provide you with a template if you need to write a statement. As a basic minimum, every statement should contain the following:
- Start with the name of the case and the case number
- State the full name and address of the person making it
- Set out what the person has to say clearly in numbered paragraphs on numbered pages
- End with this paragraph ‘I believe that the facts stated in this witness statement are true’
- Be signed by the person making it and dated.
- You may find some more helpful information about legal advice on our Links and Resources page.
- You can visit the Justice.gov site for their advice to self representing litigants. You may also find Lucy Reed’s book ‘Family Courts without a Lawyer’ useful.
- Have a look at our post Going to court?
- You can get copies of court forms and leaflets from this site.
- A useful site is The Custody Minefield which offers tips on attending court and how to prepare your evidence.
- Courtroom Advice offers step by step advice on appearing in court.
- Here is an interesting article from BBC news about parents’ experiences representing themselves in the family courts.
- There is research from the Ministry of Justice about litigants in person in private law cases in 2014.
- See the guidance for lawyers about how to deal with litigants in person – avoid inflammatory words and phrases!