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Please remember, our Charity's view remains that going to court and embarking on litigation is the last step to be taken, after all other means have been discounted.
Providing practical support to those parents who represent themselves in family proceedings is one of FNF’s major areas of work. The vast majority of this help is provided by volunteers who, having been through court proceedings themselves, choose to ‘put something back’ by helping other members with their cases. At some point in the future perhaps you will be able to do the same.
Having started or been brought into litigation, representing yourself, rather than hiring lawyers will, for many parents be the only feasible option; you earn too much to qualify for legal aid and, paying privately for lawyers is prohibitively expensive.
For more details and appendices, please see our factsheet on representing yourself
Could you do a decent job?
Whether you can do a decent job representing yourself depends on a range of factors:
- How complicated the case is - the majority of children proceedings are relatively straightforward, involving scant legal argument though the right procedures have to be followed.
- Whether you can be objective - detach yourself emotionally when required.
- Whether you have the stamina to see it through; it can be wearing.
- Whether you have realistic goals - a lawyer/FNF can tell you.
- Your experience and skills - you may be familiar with the proceedings, having been represented previously.
- Whether you are able to source help and advice; FNF members are best placed for this.
- Do you have the time?
- Can you accept responsibility for failure/lack of success?
- Can you focus on what the courts regard as important and leave other arguments aside?
- Can you speak in front of an audience? Attending FNF meetings will prepare you for this.
A person who 'acts in person' without using a lawyer is referred to as a 'Litigant in Person' (LIP). If you are the person initiating the proceedings you will be referred to as the Applicant and the other party will be referred to as the Respondent.
Why might you want to represent yourself?
Everyone has the right to conduct his own case, but what are the reasons that may lead you to conduct your own case, to represent yourself?
Solicitors’ fees range upwards of £200 per hour. You will be charged for telephone calls made and received (with the clock, graduated in 6-minute charging periods, ticking away), for letters received and written, for time spent reading and preparing statements, for time travelling to and attending court. Typically, a ½ hour hearing may be called for 10.30 am but you may not go in front of the judge till 12.30pm or you may even have to wait through to the afternoon, paying your solicitor for standing around – the meter is ticking away. The majority of solicitors will recommend that a barrister (counsel) speaks on your behalf at all or perhaps only the most important hearings. You will be lucky to keep counsel’s fee down below four figures, however short the hearing.
Many a committed parent, feeling that ‘money is no object’ when their child’s relationship with them is at stake, has started proceedings by instructing lawyers, only to find himself abandoned and on his own when his funds run out – and they can disappear remarkably quickly.
How best to use professional help?
(a) Use a solicitor solely for advice: Some solicitors, especially if they have already earned some fees from you, will be prepared to have you manage your own case as an LIP, but make themselves available should you need to discuss things with them or seek advice, charging you only for that time.
(b) Wait till later in the proceedings to instruct a solicitor: The majority of cases begin with lengthy negotiation through solicitors – letters going backwards and forwards, many containing allegations and denials and explanations. Your solicitor will almost always have to refer to you before responding anyway; he or she simply will not have the information to respond. With advice, a sensible person who can emotionally detach themselves can handle this correspondence. The first stages of litigation are routine procedures, such as forms to be completed – you would not pay a lawyer £200 an hour to complete an application for a driving licence or passport, so why pay him to complete your children proceedings application form? Many FNF members can help you with such a simple exercise. The first hearing (see procedural explanation) will be a ‘conciliation hearing’, a dispute resolution hearing, in which the parents rather than their legal representatives hold centre stage as the court seeks to have the parties reach an agreement without the matter having to proceed to a fully contested hearing. Accompanying solicitors are frequently limited to contributing only a few words at these hearings.
If the case proceeds, most parties will be asked to prepare a statement for the court, setting out their case. Your solicitor won’t know your case and will need to get the ‘story’ from you, either by noting it down as you talk it through or by having you provide him with information in writing – i.e. by you drafting the statement yourself. Many litigants are better communicators than the lawyer, can produce a more intelligible and well-argued account than the lawyer can. There are few technicalities involved in preparing a statement and there are many FNF members who can tell you what is required, and even show you sample statements.
There may be many hearings of different length and varying importance in your case before a final hearing where evidence will be heard and witnesses cross-examined. Such a hearing could be for half a day, a whole day or last over several days. For those who can afford it, this is perhaps when it may be necessary to spend your money on legal representation. With correspondence and documentation you can compensate for any lack of knowledge or expertise by spending more time than on matters than your lawyer can, and therefore perform as well as, or better than, him. However, in the cut and thrust of a hearing, you may have to ‘box on your feet’, make immediate decisions and responses. You may be able to manage this. You will have plenty of time running up to this final hearing for you to consider whether you could manage it.
The number of solicitors with a legal aid franchise is diminishing. Relatively speaking, they do not earn a great deal of money, and what they can earn is capped, so often they will be unable to carry out your instructions as fully as you would wish. Whether you will be granted legal aid depends upon:-
(a) Financial eligibility: whether or not your income or assets are below the legal aid threshold. Even those who qualify for totally free legal aid must beware if they are also involved in divorce proceedings at the same time. Non-contributory legal aid for proceedings which are entirely children’s matters is free (no repayment will be required) because no assets will be recovered or retained as a result of the action (as in a divorce where property or money is in dispute) but often, without realising it, parents have both children and divorce proceedings interwoven and then the legal aid expended on their lawyers is charged against their assets (this is known as the ‘statutory charge’ – for both the children proceedings and the divorce matters). In some instances the divorce ancillaries (financial matters) may have been settled quickly but the children matters have gone on for years on the same legal aid certificate. Then, instead of being entirely free, as they would have for a low-income parent without accompanying financial proceedings, the legal aid funds advanced to you will have to be repaid under the statutory charge.
To find out more about legal aid and the statutory charge visit the Community Legal Services website (http://www.legalservices.gov.uk/civil.asp). In this case a parent may choose to act for himself in the less technical children’s proceedings.
(b) The merits of your case: a solicitor must recommend to the LSC that you have a reasonable chance of succeeding with your case, so that it will not be a waste of public money. Initially most reasonable applications should pass this ‘merits test’ – your case has a merit, it is possible to succeed. Later on, if a CAFCASS welfare report does not support your case (e.g. the report recommends no staying contact and your application is solely to increase visiting contact to overnight staying contact) then a solicitor may tell you that he is obliged to inform the LSC that your case does not have a reasonable chance of success, that he cannot recommend that public money is wasted on it, and that public funding of your case be stopped.
In some instances it is important to act quickly. Even those who are paying privately may find it difficult to arrange a meeting or even speak directly with their busy solicitor who may be in court, on holiday, in conference etc. For those on legal aid, though emergency certificates can be granted, few urgent matters are regarded as emergencies and you will have even longer to wait.
It is not uncommon for a parent to believe that an application has been made to court whereas all that has happened is that the solicitor has made an application for legal aid.
If a court application is urgent, the best course of action is to make the application yourself, even physically taking the form to the court and getting your hearing date set rather than simply posting it. If you are on a low income you can have the application fee (£175 in 2008) waived by applying for fee exemption. Being in receipt of Job Seekers Allowance will result in automatic qualification. There is also the matter that, before the LSC grants a legal aid certificate, it will invariably require the parties to have explored mediation. In highly-charged situations you may know that mediation is completely out of the question, but having to go through this stage can further delay the issuing of an application.
At all stages, the ‘relaying’ of correspondence can cause delay. You write to your solicitor with contact proposals; your solicitor writes to the other party’s solicitor who then passes this on to the other party for her comments. And then the response is relayed back to you at painstakingly slow speed. Simply taking your solicitor out of the relay so you write directly to the ‘other side’ can speed up matters.
It is our experience that many family law solicitors simply go through the motions, routinely doing what they always have done, putting you on the conveyor belt and letting everything take its predetermined course. You may discern that your solicitor passively accepts situations rather than works actively to progress your case. However, on some occasions a solicitor’s relative inactivity will be a valid response since nothing can be affected. This can be very frustrating. It is difficult for a parent, new to this field, to assess whether his lawyer is pulling out all the stops. It is difficult to know whether it is professional expertise or lethargy which may lead a solicitor to disregard arguments that you consider to be powerful and worthwhile advancing. However, it is our experience that it is rare for a solicitor to ‘go the extra mile’ particularly when this involves challenging a powerful judge. It is much easier for them to accept what is being proposed by the court or the other party, and handle your disappointment or anger, than it is to stand up to a judge and have him change his mindset.
You can spend a lot more time preparing your case than your solicitor. LIPs can draft and re-draft statements and letters over and over again whereas you won’t thank a solicitor spending 10 hours and £2k of your money on producing one statement. An LIP can spend the time tracing CCTV footage in order to challenge a false allegation about his behaviour at a contact ‘handover’, whereas a solicitor (especially a legal aid solicitor) would rarely even consider sleuthing to be part of their work.
Some solicitors fail to keep up with developments in family law. It is surprising how many will not know of recent case authorities that many members of FNF are familiar with.
The actual hearing can be a daunting experience, especially if it is a long one. However, by the time a ‘final’ hearing comes around, many LIP’s have become quite experienced and confident.
Judges vary in their attitudes towards and treatment of LIPs. The Judicial Studies Board addresses this its Equality and Justice publication [at 1.3] highlighting a Lord Justice Woolf remark: “All too often the litigant in person is regarded as a problem for judges and the court system …”. Mr Justice Munby however sees LIPs in a different light, as illustrated by his remarks in evidence to a parliamentary committee on the family courts in November 2004: [at Page 10] “I find it is often easier dealing with cases if the parties are appearing as litigants in person because what you are actually getting is the facts of the case as they see it without the assistance, and some people might put that word in inverted commas, of lawyers.”
Many parents find it difficult, tempting though it may be, to hand over responsibility for their children to someone else. Others need to feel that they are actually ‘doing something’ themselves. Many who employ lawyers experience a feeling of powerlessness, of being bystanders rather than involved parents helping to shape their children’s future. The actual grind involved in preparing a case can, pretty much like a strenuous physical work-out, provide you with satisfaction, of feeling that you yourself are actually doing something for your children. Many fathers have discovered unknown abilities, have grown as individuals, through representing themselves. And, some mothers who have previously been contemptuous of their partner’s abilities are forced to think again when they see him successfully managing the proceedings himself whilst they rely upon professional lawyers. At the end of the day you have to be able to say that you did your best.
What other considerations are there?
Some procedural considerations
If you are an LIP right from the start of the case the court and the opposing party will have been notified that you are an LIP since you will have indicated this on the court form. If you decide to stop using a solicitor and begin acting in person you must formally notify the court and the other party (and CAFCASS if a welfare report has already been ordered) so that there is no confusion who to correspond with and to make sure that everyone has your correct contact details. You do this by sending a ‘Notice of Acting’ (please refer to Appendix 1) to everyone who needs to know. It is technically best that your solicitor writes to the court to say that he wishes to ‘come off the record’ as acting for you, but since most solicitors will charge you for this final letter, as long as you indicate in your ‘Notice’ that all who need to know have been informed, you can safely ignore this.
Some practical considerations
- If you have been represented and subsequently choose to act in person, you will most probably need to recover your case file (documentation) from your solicitor. If you have been paying for your solicitor he will most probably insist that you settle your account before he releases your file to you. Solicitors acting for you under a legal aid certificate can also be reluctant to provide you with your file until they have been paid by the LSC. However, your solicitor should have been providing you with copies of almost all, if not all, the documents on your file in any event. You can circumvent your solicitor’s refusal by asking the court office for copies of any papers filed with the court as allowed by Rule 10.20 of the FPR1991. For those in receipt of legal aid whose solicitor refuses to release the file it is possible to pay a small fee to the LSC and have a copy of your file provided to you.
- You will find it very difficult to represent yourself if you do not have access to a word processor or have someone who can prepare documents for you. Having email will enable you to access help with letters and documents from other members and will allow you to involve yourself in the FNF email forums.
- Communicating clearly and arguing your case articulately, in documents and verbally, are very important in family proceedings. Therefore, if you are not fluent in English you are at a disadvantage, no matter how understanding and helpful the system may try to be, no matter how clever and resourceful you are. It would be a good idea to attend English classes or enlist the help of someone with fluent English.
Some general advice
- Remember, the other party’s lawyer is not the one making the false allegations but simply the one hearing them from his client and presenting them to you. The lawyer hears their side, generally has no reason to think they are not telling the truth, and is obliged to follow their instructions and accuse you. Don’t shoot the messenger.
- Don’t get drawn into pointless arguments with the other party’s lawyer. There is simply no point in proving your case to him. Save it for the court. Often a simple denial rather than a fully argued explanation or defence may suffice.
Regard every letter you write as potentially ‘evidential’, as a document that could be put before the court. So, avoid making threats of any kind or writing anything you wouldn’t want the judge to see.
Remember, clever things written in the small hours of the morning will look rather different when viewed later in the cold light of day. Don’t send that email … wait.
You are too close to the situation to be wholly objective. As far as possible, run any letters and all statements past others for their advice; past several others if possible, depending upon how important the document is.
- Try not to rely on the advice or guidance of a single person. Advisors may be adamant about a course of action simply because it was successful for them, not knowing that their own experience was an exception and that for the majority of others that particular course of action resulted in failure.
Be assertive without being aggressive.
- Do not write to the judge unless there are exceptional reasons. If you do, you must copy your letter to the other party to ensure that it is clear that you are not behaving in an underhand manner, trying to secretly influence the judge in an underhand way.
Avoid using legal jargon and writing in an unnecessary legalistic style. It is not necessary and often looks foolish. Alternatives can be found for aforementioned, herein etc
Remember, a statement is your account, it is written in the ‘first person’. Do not refer to yourself as ‘the father’ or "the mother" but as ‘I’ and ‘me’. Think twice when using ‘myself’. For example: 'there was an argument between his mother and myself' (wrong); 'there was an argument between his mother and me' (correct).
- Do not accuse others (judges, CAFCASS, solicitors, social workers) of being part of a conspiracy or of being corrupt. It won’t help you. You won’t be believed. It will do you harm.
- Obtain a copy of ‘Children Act Private Law Proceedings: A Handbook’ (Jordan Publishing). If you are only going to buy one book, buy this one. It is highly recommended. It would be a false economy to try to manage without it. You can purchase it online here. View the contents page to be persuaded.
Where can I obtain practical help?
You could manage to represent yourself entirely without assistance but with help you could probably do a better job.
At any hearing, an LIP is entitled to receive assistance from a friend: a person termed a ‘McKenzie friend’. The nature of that help is strictly limited by the court. See the McKenzie friends factsheet. Within FNF there are a limited number of volunteers who, for no fee, will accompany you to court and act as McKenzie friends. Increasingly, there are a number of people both within and outside of FNF who will do so, but who require payment. Be sure to establish whether you will be expected to pay or not.
There are also volunteers, often connected to FNF branches, who will help LIPs answer correspondence, complete applications and prepare statements for court. Though this help is often referred to as McKenzie friend work it is probably more accurate to call it ‘litigation support’. It can be very time-consuming and therefore it is understandable that few people, having their own work commitments and parenting their own children, can afford to give this amount of time to others for free.
Those who do commit to this level of work tend to charge fees. Some do it part-time, some as a full-time job. Some are competent and reliable, others are not. And, just as with professional lawyers, their performance tends to be judged by the outcome, rather than by any proper assessment of their competence or contribution to the case. Do not forget, those clients who achieve an acceptable ‘result’ will probably regard this McKenzie friend / litigation assistant as performing well, whereas those who are disappointed may well reckon them as poor value, regardless of their ability and contribution towards the case.
In London, the ‘Personal Support Unit’ at the Royal Courts of Justice (RCJ) and the Principal Registry of the Family Division (PRFD) may be able to provide someone to accompany you in the hearing but cannot offer legal advice. In the RCJ you may also get help from the RCJ Advice Bureau which boasts:
“Employed lawyers, supported by volunteer solicitors from almost 60 firms, provide free advice on civil law and family matters that are dealt with by the courts on a daily basis.” It’s not a walk-in service as with most Citizen Advice Bureau’s - you must book an appointment. The RCJ Advice Bureau has been known to prepare a complete master bundle for FNF LIPs in High Court and Court of Appeal cases.