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Using a Solicitor

Should I use a solicitor?

This is a hard question to answer, since the answer depends on the complexity of your case, your own abilities, and your ability to speak in court while under stress. More and more people are choosing to represent themselves in court, and The Custody Minefield is one of the UK´s leading web sites providing information and resources which enables them to do so. That said, we do believe that some people would do better with a solicitor. The main reasons to consider representing yourself include:

  1. You are likely to know the details of your case better than your solicitor;
  2. Where barrister is instructed to act for you in court (speak on your behalf), it is not unknown for them to change the day before the final hearing (as another case has over-run), and for your ´legal expert´ to have to catch up with the full case history by scanning through the case file at the last moment. While the assurance is given that they are quite capable of doing this, my own preference would be certainty that the person speaking for me was well prepared. Discuss this risk with your solicitor if you use one;
  3. Much of the work done by solicitors (in family cases) is not overly complex, such as sending letters, filling in forms, and helping their client´s write statements. The costs associated with this work can soon mount up though;
  4. Many people cannot afford a solicitor. The costs of family law cases can stretch to many thousands of pounds, and those who can afford the fees often end up crippled with debt in the years that follow. Expect a simple case to cost a few thousand. Expect a complex case to cost a five figure sum in legal fees;
  5. If you represent yourself (unless costs are awarded against you, which remains a relatively rare occurrence but is possible), the cost is likely only to be the cost of making the application (about £200 for most fees), and the cost of photocopying and postage (unless expert witnesses are needed, such as psychologists for psychological assessments);
  6. More information than ever before is now available to assist people who represent themselves,and most of it via our Family Law App and from The Custody Minefield website (e.g. forms, case law, documents for court, process guides etc.);
  7. The courts are more used to people representing themselves. Only a few years ago, it was quite uncommon;
  8. You can get a lay advisor to assist you. Some lay advisors offer their help for free, while others charge a fee which may be a fraction of what a solicitor would charge. That said, unless in exceptional circumstances, a lay advisor cannot speak for you in court (although they can sit with you, and quietly advise you), or cross-examine witnesses, or carry out other duties which a solicitor would, such as corresponding on your behalf, writing to the court etc. Lay advisors are more commonly called McKenzie Friends in family law. If you decide to use a McKenzie Friend, again, choosing one on recommendation is best, and make sure they clearly set out their fees, explain what they can and may not do to assist you, and set out their level of experience. Ask for testimonials from previous clients!

The main reasons to consider using a solicitor are:

  1. They (or a barrister) will speak on your behalf in court, and present your evidence for you;
  2. They can cross-examine (question) witnesses at a contested or final hearing. When representing yourself, you must do the cross-examination, and it is no easy thing to question your ex-partner in court. A solicitor or barrister can be more forceful in their questions, without an allegation coming back that the witness is being bullied (by you! which risks the implication that this is how you used to behave during the relationship);
  3. They can help you write your statement, advising you remove any emotional or unnecessary wording (or doing this for you). A lay advisor can also advise on what to include or omit in a statement;
  4. At a time when you´re likely to be experiencing some considerable stress, they can take care of much of the case for you, prompting you when required;
  5. If you have any form of learning disability, suffer from dyslexia, dyspraxia, or suffer from stress, nerves or anxiety, then I will go as far as to say that you should always use a solicitor if you can afford one, as without that level of support, the outcome of your case may be affected. While the courts should make proper allowances for communication disabilities, I know of too many cases where the person who has the disability experienced significant disadvantage.
  6. While much of the paperwork is straightforward, there is no denying that the usefulness of a solicitor or barrister comes in their knowing what to say, delivering it skilfully, and also on having an objective view on what matters to leave out!
  7. An unskilled litigant-in-person, who lacks some experienced assistance, can overload the court with irrelevances. I have been asked to look at 200 page statements, when 5 pages would suffice. Similarly, statements (without a solicitor or advisor´s input) can be overly emotional, confrontational or sometimes downright confusing to read.

As a general rule of thumb, the more complex a case is, and the more difficult you find public speaking, the more you should consider using a solicitor. If you have any form of learning disability, suffer from dyslexia, dyspraxia, or suffer from stress, nerves or anxiety, then I will go as far as to say that you should use a solicitor if you can afford one, as without that level of support, the outcome of your case may be affected. While the courts should make proper allowances for communication disabilities, I know of too many cases where a person with a communication disability has faced a significant disadvantage when appearing alone (or handling the case management side, paperwork etc).

What does a solicitor do?

A solicitor is there to represent your wishes, explain to the Court what you want to see happen, give your history of events, and ask the Court to consider making a decision in your favour. They help you by filling in the right paperwork, putting together your statement for the Court, and then managing your case while it goes through the legal process.

Family Law solicitors should attempt to help you resolve matters amicably, and will normally attempt to do this via correspondence with your ex-partner or more likely his or her solicitor, if one has been employed.

Solicitors only know what you tell them and take instruction from you about what you want to do.

How do I find a ´good´ solicitor?

Like any other person you employ to give a service, common-sense suggests you ask other people if they can recommend one. If you have a friend or family member who can recommend a solicitor, ask them why they do!

Questions to ask include:

  1. Did they listen to you?
  2. Did they say what you wanted them to in court (did they follow your instructions)?
  3. Were they clear in how much they were going to charge you?
  4. Did they keep you updated as to how much you owed them?
  5. Did they give you estimates of how much their costs would be (e.g. for attending court, what their total costs were likely to be, etc)?
  6. Do you feel they gave you good advice?
  7. Did they recommend you tried mediation before heading to court?
  8. Did they tried to mediate an agreement outside of the court room with the other party and their solicitor?
  9. Did they reply to you promptly, or did you have to chase them?

A good solicitor isn´t necessarily one who won a case, or agreed with everything their client wanted. The ultimate outcome of court proceedings comes down to many factors, including the strength of a case (on both sides), the recommendation of any experts involved or welfare officers, and most crucially, the opinion of the judge (who makes the final decision). A solicitor can be good, and still have lose a case, but achieve a better settlement for their client than might otherwise have been expected.

For the solicitor, there is a balance struck between managing the client´s case and following their instruction. Some solicitors may lean too heavily in either direction, either relying almost entirely on the client telling them what to do (´Ah, but Mr Smith, you didn´t ask me to do or say that´), or too far the other way in not listening to what the client wants and not following their instructions. A good solicitor (in our opinion), will listen to their client, advise them of courses of action which they might take, and set out the potential the risks associated with each course of action. Then, they will ask their client to decide which course of action to take. It is up to the client whether or not to take their advice.

It is important to remember that a solicitor has the benefit of not being emotionally involved in a case, allowing them to be more objective. Similarly, they will have experience of knowing what course of action is more likely to succeed. That said, no solicitor can guarantee what the court will decide.

A good Family Law solicitor should be looking to find areas of agreement and compromise between you and your ex-partner. A positive sign is your solicitor advising you to consider mediation as an alternative to court proceedings. This suggests that the solicitor is more concerned over finding an amicable settlement than the profit potential from representing you. Any legal aid solicitor should, as a matter of routine, recommend mediation. It is still surprising how many do not (in 2007, according to the Legal Services Commission, a third failed to do so despite it being a pre-requisite of receiving legal aid funding). New court rules brought in in April 2011 now require all parties to attempt mediation before applying to court. There are however some exceptions to this, and please read our guide on the new mediation process which provides detailed information.

If you do not know anyone who has used a family law solicitor, check to see if a solicitor is a member of Resolution First for Family Law, an association for solicitors who follow a code of practice aimed at constructive, non-confrontational dispute resolution. You might also want to consider using a solicitor who engages in ´collaborative law´

What is collaborative law?

Collaborative law is a relatively new process, where both parties and their solicitors meet to explore whether agreement can be reached outside of court. Parties first meet separately with their solicitors, and then the four of you (the two parties and their solicitors) meet together.

Collaborative law requires both parties and their solicitors to commit to reaching an agreement. At the start of the first meeting, all should sign a document to that effect. Collaborative law, in practice, as with any form of negotiated or mediated agreement, requires all parties to be willing to, and capable of compromise.

How to find a ´collaborative law´ solicitor.

Resolution First for Family Law provides a database of solicitors who practice collaborative law. Again, it is best if you can find someone you trust who can recommend one.

What is the difference between collaborative law and mediation?

With normal mediation, there is an independent mediator whose role is to facilitate the two parties reaching agreement, but who should not be taking either party´s side. The mediator is not there to advise either party as to their legal rights or offer legal advice.

Collaborative law is different to standard mediation, in that both parties have their own legal representatives assisting in the agreement process, but also looking out for their individual client´s interests, and with no independent third party present. The positives are that you have your own advisor at the meetings, who will be looking out for your legal rights, as well as (hopefully) a fair settlement. The negatives are that there will be two sets of fees to pay (for the two solicitors), which is likely to be more expensive than the cost of a single mediator. It is fair to say that many cases are settled outside of the court room, assisted by solicitors.

Does my solicitor need specific expertise?

Yes, depending on your circumstances. If there are other issues that impact on your situation, such as mental health problems or abuse allegations, ask if the solicitor has specific experience in handling these types of cases. So often, due to the rapid progress of events, people choose the first solicitor they come across.

If your case involves an international relocation, we strongly recommend you only seek a law firm with expertise in this area. The charity Reunite will be able to recommend one.

What should I ask at the first meeting?

Ask the solicitor if they charge for an initial, half hour consultation. If they do, use this half hour to ´interview´ them. You choice of solicitor is important.

Before contacting a solicitor, there is nothing to stop you arranging the mediation yourself. Again, our mediation guide provides you with the information you need (it is not a complex process!). You may wish to seek legal advice before you make an agreement with your ex-partner though, and that is your decision. If you want legal advice before mediation or if the mediation was unsuccessful, we recommend asking the following questions at your first meeting with the solicitor, if you decide to take the matter to court, and decide representing yourself is not right for you:

Can I prepare for the 1st meeting?

Yes. Before your first meeting, try to write down, or at least think of, the following matters, to help you be prepared when speaking to the solicitor:

Outcome: Write down an outline of what would be the ideal Court decision or outcome. Consider what is best for your children, not for you, since this is what the court will do. Next consider the "worst" situation you could accept and also where you´d be prepared to compromise.

History: Write a chronology (diary) setting out a history of events (including dates and times if you can) leading up to your decision to go to Court. Let your solicitor decide what is relevant and what isn´t. Remember the solicitor will only know what you tell them.

Concerns: Note down any concerns you have about your ex-partner's circumstances or ability to care for your children. If you don't have any but think you are more suitable to be their main carer, that´s fine. The Court won't appreciate unfounded allegations, and any allegations you make are likely to be tested in Court to see if they are valid.

Contact: If you're not applying to be your child´s main carer (have your child primarily reside with you), but simply to ensure you see your child regularly then what does "regularly" mean to you?

If you're not currently seeing your child at all then as a matter of urgency have your solicitor approach the Court to request they make an immediate Interim Child Arrangements Order (this is a temporary order until the Final Hearing lays down what will happen in the long term). It is important for both you and your child that your relationship is maintained while the Court case progresses (which can take months).
Again, give thought as to whether this would be every weekend with you, every other weekend, times during the week so you can be involved with school, as well as how much of their holidays they would spend with you. Think of the practicalities of the arrangements including how you can balance looking after your child with work commitments. Can you carry on your current job and look after your child at the same time and to the same standard (or better) that your ex-partner can?

Confirm whether you have legal Parental Responsibility: It is important to ensure that you have legal Parental Responsibility. If not, discuss this with your solicitor as a priority and also read our guide on how to find out whether or not you have it, and how to obtain it if you don´t!

Risks and Fast Action: If you think your partner could be a risk to your child due to mental health problems, drug or alcohol dependency, or other identified risks, then act quickly. Talk to your solicitor about the possibility of an Emergency Protection Order.

Don't rely on others to protect your children. They are your responsibility and Government agencies have been known to make mistakes. If you have concerns about your ex-partner, try to assemble evidence to support your case for the first meeting. Again remember that the Court won't view you positively if you make unfounded allegations. Don't appear malicious, no matter what unpleasantness has occurred in the past.

Allegations: If you expect your partner to make allegations, then alert your solicitor. The more prepared your legal team, the less chance of them being caught without a response, rebuttal or explanation.

If you are making allegations, how will you present those fairly, or defend yourself against counter-allegations from your ex-partner? Don't go to Court on the premise that you are innocent until proven guilty.
Family Courts make a decision on the lowest level of evidence. This is known as the "balance of probability": in essence, what seems most likely, or will limit risks. They will take allegations of domestic violence and abuse extremely seriously, and rightfully so, and while these are being investigated, may reduce or stop your contact with your child.
You could find yourself waiting months before these investigations are concluded, and during that time, your ex-partner will have been the main carer for your child, and the Courts may be unwilling to change the situation as the child is now used to living with them.

Evidence: If you face allegations of parental unfitness, or have these concerns about your partner, what evidence is there to support this or defend against it?

Practicalities: How would you care for your child if the Court agrees the child should live with you? Can you get enough time off work to look after your child for half the holidays? Think how you would look after your child. If your child is to live with you or spend the night during the school week, would this require a change in working hours (see our guide on Flexible Working), change in job, use of child minders or help from grandparents? How would you financially support your child AND look after them? Compare your situation to your ex-partner's and consider what would cause the child the least disruption, while still maintaining a full relationship for the child with both parents.

Your Finances: If you need legal aid, be ready to discuss details of the equity you have in your home, your gross earnings, and your monthly disposable income. The criteria for qualifying for legal aid can change, and you may need to provide your solicitor with additional information before they can confirm whether you qualify for free or subsidised legal assistance. Also check whether the solicitor carries out legal aid work!

Your Future: What is the best outcome for you, as well as your child? Have you considered what being a single parent means? You may find that having the child stay with your ex-partner for a weekend, every other week, gives you the opportunity for a social life, some romance in your life, time for hobbies, or even the occasional lie-in.

Was the solicitor right for me?

After the meeting, consider whether the solicitor was able to explain things to you so you understood, how confident they made you feel, and whether they fully understood your situation. Do you think they listened to you? If not, consider seeing a different solicitor.

Will I need a barrister and what do they do?

Historically, only a barrister was able to act as an advocate for a client in the higher Courts (an advocate in this context being a legally trained professional allowed to speak on your behalf). The solicitor´s role was constrained to preparing the client´s case and instructing the barrister on the client´s behalf. The law has now been changed allowing solicitors to carry out role.

Your solicitor may consider instructing (employing) a barrister to assist in your case if specialist legal knowledge is required, and sometimes if there are witnesses or expert witnesses to be cross-examined (questioned in court). Such a decision should also take into account the additional cost of doing so.

Larger firms of solicitors sometimes have barristers working within their firm (rather than working privately out of a Chambers). If the solicitor believes a barrister will assist your case, the solicitor is likely to recommend one (or a choice from several) to you. If, however, you know of a barrister, and want this barrister to be your advocate in court, you should let your solicitor know.

How can I keep my costs down?

Being prepared prior to seeing your solicitor, including having your instructions in writing, reduces the amount of time you need to spend in meetings, and saves your solicitor time when preparing your case. This will save you money. Each hour your solicitor spends on your case or talking to you can cost you between £150 and £200, sometimes even more. Think about the cost, and make sure you are fully aware from the outside of how much your solicitor charges and for what.

Some people fall into a litigation frenzy, where solicitors letters have to be sent over what, in hindsight, are quite trivial issues. In day-to-day life, would you spend £75 on writing a letter about your child coming home with chocolate stains on their t-shirt, or similar trivialities?

Beware of using the solicitor as a counsellor. Court proceedings are stressful, and there is no shame in seeking counselling support. That said, a trained counsellor will cost in the region of £35 an hour, while your solicitor will cost you 4 to 5 times that amount, and it is not really their field of expertise. Keep your conversation with your solicitor to the practicalities of the case. Speak to your counsellor about the emotional strain placed upon you by delays, unfairness, false allegations and the other strains you may have to deal with. Our guide on Managing Stress may help you (and is free!).

Other tips

One last thought...

Consider what your solicitor says and any advice they give, but remember that the decision is yours alone, and that you will need to live with what happens at the end of the court case while your solicitor will move onto the next case.

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Michael Robinson © 2014

Family law information for parents whose children are resident in England and Wales

Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen's printer for Scotland.

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