Do I need a lawyer?
Ask a Lawyer if you need a lawyer and they are bound to say yes? Well actually no. On this page I'm going to set out what I think is sensible advice about whether it is a good idea to get a lawyer in what I hope is a fair way. With Legal Aid gone for most cases I am only too well aware of how much people like me cost, so I'm not pushing for everyone to spend their money making lawyers wealthy. However, before I even get onto the subject of lawyers, let me start by taking about going to Court in the first place.
Going to Court
Don't. Unless you really have to.
There we go. Believe me when I say that I go to Court every day and I would do everything I can not end up there over a personal matter unless I had absolutely no choice.
Just think about it - by going to Court you are saying:
- I want a complete stranger to make decisions about my life and family.
- I want to air my private life in front of my ex-partner and/or a load of complete strangers and (e.g. the Judge, social workers etc).
- I want to embark on a process where the outcome is uncertain and the costs, not just in money, may be unpredictable.
You should only go to Court when you have tried all other options. That includes trying to negotiate directly with the person you are in dispute with, asking someone else to negotiate on your behalf and other ways of reaching a solution, including mediation.
Only if that has not worked should you consider making an application to a Court to sort the problem out.
Of course, if you are on the receiving end of an application (for example you are looking after a child who someone else wants to see) then you may have no choice, but even then you should always try suggesting mediation or some alternative way of reaching agreement if at all possible.
What is a Lawyer?
In the UK there are two types of lawyers: Solicitors and Barristers. The difference is not understood very well by members of the public.
Traditionally, in family cases, the Solicitors would handle most things and then they would instruct a Barrister if some specialist activity is required, for example a difficult case needing specialist advice or when the matter got to court and advocacy is needed. (Think of a GP and a Consultant - most of the time you would just see a GP but occasionally you GP would refer you to a Consultant if you had a particularly difficult, unusual or serious complaint). It used to be the case that members of the public could not go and see a Barrister directly without a Solicitor being involved, just like with GPs and Consultants.
Things are changing, more Solicitors are doing their own advocacy and some Barristers, like me, have been trained so that members of the public can see them directly (Public Access). Have a look at the Using a Barrister page on this website to see more about that.
I use the term 'lawyer' on this website to mean both Barristers or Solicitors, even though I myself am a Barrister.
What makes a good Lawyer?
It is impossible to give a complete answer. I am going to tell you what my idea of a good family lawyer is, but others would disagree or change things. I'll also tell you what I think you should ask any lawyer you are thinking of employing to do work for you.
I think that a good lawyer:
- Is honest.
- Is as good at listening as they are at speaking.
- Is prepared to see all sides of the argument or situation.
- Is experienced in the area of law you want them for.
- Is prepared to give you advice you do not want to hear.
- Can explain difficult concepts in a way you understand.
- Can stand up for you if they tell you that you are right.
- Can stand up for you even if they have told you that you are wrong.
- Enjoys being a lawyer.
Anyone who goes to see a lawyer for a family case is, in my view, entitled to ask any or all of the following questions:
- How much experience do you have doing cases like mine?
- If we go to Court, who will represent me and how much experience will they have?
- How will you keep me informed as to how much it is costing?
- Will you tell me if I am wrong?
- Will you argue my case if I am right?
- Will you still argue my case if I am wrong?
- Will you give me an honest opinion as to the possible and likely outcomes of my case?
I am sure that there are things I have missed out but you get the idea. The most important thing is that you have an honest lawyer. Honest about your case, honest about how much it will cost and honest about what they can and cannot do for you.
What do lawyers do?
A lawyers job can be broken down, in my view, to the following broad tasks:
- They give you advice.
- They negotiate with the other side.
- The prepare documents the Court and other side will see.
- They prepare documents that set out clearly and precisely what should happen or what has been agreed.
- They represent you in Court and argue your case (advocacy).
Do I need a lawyer?
If you can easily afford one, the answer is always yes. It is very difficult to give yourself advice, which means it is very difficult to see the holes in your own argument, which means its difficult to know how to deal with them, which means it is difficult to speak on your own behalf effectively. Family law can be tricky and any person who has experience of the law on your side can make all the difference.
There are many people who cannot easily afford one or cannot afford one at all, so it might be helpful if I set out examples of the sort of circumstances where I think it is either (a) helpful, (b) advisable or (c) vital that you have a lawyer.
Sometimes you can save yourself money, time and heartache in the long run just by going to see a Solicitor or Barrister for some initial advice on your circumstances. They may be able to give you an idea of what you can expect to achieve and what your 'bottom line' should be in any given case. That way, you won't waste a lot of money trying to get something that is likely to be hopeless or settling for less than you could have achieved. Don't rule out the possibility of going to see a lawyer for some initial advice only and then making a decision about whether to 'go it alone' from then on or use a lawyer for some or all of the rest of the case.
You do not need a lawyer to go to mediation. Sometimes it is helpful and cost effective to have some advice from a lawyer before or after mediation (before you agree something final) just to see if you are getting a fair deal.
When do I need a Lawyer?
It is helpful but not vital to have a lawyer:
- If you are having contact (access) to your child but would like to spend more time with the child.
- If you are the main carer for a child and someone else is asking to see the child. You think they should see the child and the only argument is over how much time they spend with the child.
- If you are involved in a divorce and there is not a a large amount of money to argue over.
- If someone involves an injunction against you which you do not intent to argue against (for example an injunction to stop you from harassing them - even if you don't agree that you have harassed them in the past).
It is more advisable to have a lawyer:
- If someone is stopping you seeing your child completely.
- If you think that a child should live with you instead of someone else because they are not doing a good job of looking after them.
- If someone wants to see your child and you think they should not see the child.
- If your are involved in a divorce and there are significant amounts of money to argue over.
- If someone is alleging that you have been violent to them in the past and you are admitting that the allegations are largely true.
It is, in my view, vital to have a lawyer if you possibly can:
- If someone wants to take your child with them to live abroad and you do not agree.
- If you want to go and live abroad with your child and the other parent does not agree.
- If someone has abducted your child.
- If your case involves domestic violence allegations that are untrue;
- If you case involves allegations of harming a child (i.e. physical, sexual or emotional abuse);
- If your case involves an assertion that you should never see your child again;
- If someone is trying to take your child away from living with you;
- If you are involved in a divorce and there are substantial amounts of money or complex financial arrangements involved.
Ultimately it is up to you whether you get a lawyer. You must balance (i) how much you can afford with (ii) what are the issues at stake and (iii) how important is the outcome to you?
I have written a page on costs and how to control them.
Do not forget that Legal Aid is available in some cases. See my page on Legal Aid to see an outline of the sorts of cases that still qualify for legal aid. Do not be afraid to ask a legal aid solicitor if your case qualifies for legal aid.