On self-representation, and solicitors.

There has always been much talk on my group and others about solicitors, indeed it has been one of the most frequently discussed, and contentious issues. A recent report suggests that 57% of parents now self-represent during family court proceedings, often with the support of a McKenzie friend. The removal of legal aid for most people clearly left a void of affordable options for litigants, unless able to prove eligibility for the remainder of legal aid through domestic abuse claims and means testing.

Will a solicitor improve my chances of winning my case?

Why then, do people still hire solicitors? Predominantly I assume it’s because they feel they have a better chance of ‘winning’ their case. I often empathise with my clients that our children are the most emotive subject that we have, and it stands to reason then that we are prepared to throw many thousands of pounds, that we often can ill afford at a legal representative in the perception that it will improve our chances of ‘winning’.

I have deliberately written ‘winning’ in such a way, because there really isn’t such a thing in child law cases. One can consider a particular outcome a win, of course, but it is not as cut and dried as the ‘guilty or not guilty’ verdict in criminal law. The outcome will be whatever is determined (usually by a judge or magistrates) as being in the best interests of the child/ren. So instead we could measure the success against how close the final order is to the parenting plan both sides would present. But doesn’t it then raise the question of why a solicitor is necessary? Provided your parenting plan, or suggested way forward, is in the best interests of the children then you are likely to end up with the order that you seek. The only unknown factor therefore is whether your parenting plan is indeed in the best interest of the child/ren, or whether it is instead based upon parental preference, or even completely misguided.

Experience tells me that as I mentioned earlier, children are the most emotive subject we have, and therefore it is extremely hard to be able to be completely objective, and look solely at a matter through the eyes of our children. Yet this is what is required for success in family courts. A solicitor can of course advise where they can see pitfalls in your parenting plan, but you pay thousands of pounds for this advice, and that’s even if they’re willing to put aside the additional thousands of pounds they can extract from you by not doing so, especially if it means protracted litigation with them at your every call!

So why bother?

I’ve a theory based on having spent thousands of hours on my Facebook support group and others, that there is a certain empowerment people feel from being able to say “I’ve instructed a solicitor”. I can completely understand and empathise with how this feels. Often, litigation begins at the point of already having suffered months, or even years, of protracted intractable dispute with an ex. It can feel like you’re suffocating in a quagmire of arguments, abuse or possibly worse, and struggling to see a way out. Saying you have instructed a solicitor can feel like you’re taking back control, and that you have someone there offering you a branch to help pull yourself back up again. More importantly it can feel like a way of taking back some measure of control in a situation where previously you felt like you had none. Somebody impartial believes you, they understand you, they get it! All of this feels like we are finally turning a corner, and that with this person by our side we get our first glimpse of what could be the end to those months or years of torment.

The free half hour of legal advice passes, and the solicitor inevitably advises that you write a letter to your ex-partner first of all, setting out your position and how you see matters progressing. They might include requests for contact, or for certain behaviours to start or stop. The letter gets sent, and we pay the hefty bill for the privilege of having had a solicitor’s letter sent, while we wait for a reply. It’s worth noting at this point that a solicitor will write what you ask them to write (as long as it’s legal). They’re under no obligation to refuse to write anything which could worsen your position. In fact, it may even benefit them to do so. More on that later.

Your ex doesn’t reply. They’re under no obligation to do so contrary to what one might think. In fact, a solicitor’s letter can safely be completely ignored. There is no basis in family court where anybody ever has to follow what a solicitor’s letter says! So what has the £200+ you’ve just spent on a letter achieved? It may well have aggravated your ex-partner, possibly making those behaviours worse, or perhaps it might mean they apply to court for an order? Being in receipt of a solicitor’s letter raises the blood pressure! If you’ve ever received one (and if you’ve not, you’re fortunate!) you will know that above all it simply makes you want to strike back.

Let’s say they do reply. The thinking may well be that because you’ve got a solicitor, they must now get a solicitor too? So instead of two parents discussing child issues we’ve now got a heightened state of emotion and conflict. Instead of the two parents being in the dressing room, they’re now ‘boxing gloves on’, striding towards the inevitable ‘ring’ of the family court building. It’s quite possible we now have increased the levels of conflict, which is a key aspect that judges and magistrates do not want to see. Indeed, it is probably fair to say that CAFCASS recommendations to court [which judges follow 75-80% of the time] are based largely on levels of animosity between the two parents.

It’s ok, I can afford it!

First of all – lucky you! Most of us don’t have thousands of pounds spare, but that’s great. But just because you can, doesn’t mean you should. As highlighted in the previous paragraph, it can really enflame matters between you and your ex. Further to this, it is in the solicitor’s best interests to prolong matters as long as possible.

Animosity equals cash to a lawyer. The more animosity between parties, the more issues to resolve there are, and the more entrenched those views may become. At this point your solicitor is rubbing their hands together at the prospect of a cash cow for the next 9 months. Throw in Fact Finding proceedings and you can easily double that timescale, not to mention cost. In the mean-time we have a high conflict situation, with five to six hearings to follow, emails galore, and an absolute ton of paperwork flying backwards and forwards, all at a billable rate of £200+ per hour. Meanwhile, contrary to working through the issues resulting in a favourable court order via our parenting plans mentioned above, we are instead slowly moving further away from our best fit model, and any possible outcome in the best interests of the child/ren.

Self-representing can mean that you instead maintain a child focused approach. It can prevent (at least from your side of the litigation) unnecessary delays, and ensure you are not bogged down in protracted back and forth. There is also a very worrying trend of solicitors, particularly those funded by legal aid, filing late and/or incorrect papers which can even serve to harm your case. On several occasion I have inherited cases from clients who have sacked their legal aid solicitors after finding themselves in a worse position than they started.

What if I don’t know the law(s)?

You may be excused from believing that because solicitors spend years (even decades) learning their trade, that self-representing (particularly up against a solicitor or barrister) will mean you will be unable to be successful in obtaining the order sought. This is absolutely not the case. Firstly, there is actually very little actual law in child law cases – crazy, I know. Secondly, if you had read all of this blog so far you would have by now realised that child law outcomes are determined by what is in the best interests of the children – not what one particular party necessarily believes to be the case. A solicitor cannot change what is genuinely in the best interests of the child/ren, nor can they change any hard facts. With the correct advice therefore, it’s actually quite possible to self represent. YOU are the best advocate for your children. A good quality McKenzie friend can give you advice on points of law, and direct you to sources of assistance where they cannot.

What benefits are there for hiring a solicitor?

Contrary to what you might think based on the rest of this blog, I do advocate for the use of solicitors in a limited number of situations. Firstly, they can write a consent order. A consent order is a useful document whereby parents who have agreed with each other on the contents of the court order can have it made into a legally binding document via a solicitor. It needs to be a solicitor because it has to be written in legal speak, and passed off by judge or magistrates. Obviously this will only work in low-conflict cases. It is quite rare to get to that point after already having committed to the course of going through the court system.

Another alternative is to hire a barrister. Rather than a solicitor working on an hourly basis which can run into multiples of thousands of pounds, you can hire a direct access barrister to represent you on the day. They will not organise any of the paperwork for you, and I would suggest at this point that you do this yourself, either with or without the assistance of a McKenzie friend. A barrister will present your case in court following a brief chat with you before-hand. I advocate the use of barristers particularly in cases where the litigant is unable to properly represent themselves, perhaps due to a disability or speech impediment, or where the case is extremely complex.

Of course, I have spent much of this blog illustrating that I believe solicitors aren’t necessary, and I stand by that. But that isn’t to say that there aren’t good solicitors and barristers across the country. I have met many. Some good, some terrible. And of course, our case doesn’t always go the way we want it to. For every litigant leaving the court room happy, it stands to reason that there is one that is unhappy with the outcome too. This doesn’t necessarily mean that the solicitor is good or bad, just that the circumstances were considered, and that the court went with the other version of the parenting plan.

In summary

To summarise, I recognise that there are instances where a solicitor or barrister is needed, or even essential. But those are few and far between. The courts are set up in such a way that it is possible to self-represent successfully, and the statistics show that it is becoming more common year-on-year. Hiring a solicitor is an extremely expensive business and will not necessarily improve your position.

If you wish to discuss your case with me, a McKenzie friend, then please do feel free to book an appointment via messaging me on my facebook page, for just £60ph.

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