What if I don’t have a lawyer?

 

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 [2014] 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 Advocateyou may be interested in this post from Ian Julian about the different options available. 

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.

Where do I start?

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) [2015] 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.

McKenzie friends

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.

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 in 2014 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
Income Support
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.

Further reading/information

54 thoughts on “What if I don’t have a lawyer?

      1. phillimoresarah

        I hope no one would ever be left to face the Supreme Court without some help, but you are right, the way things are going it may well become commonplace…

        Reply
    1. Sarah Phillimore

      What the government could have done is not take away funding from Citizens Advice Bureaus and Law Centres at the same time they cut legal aid. They will reap what they have sown and many will suffer for it.

      Reply
  1. amber

    Justice For Families or Parents Against Injustice were not mentioned. Some of us do have right of audience.

    Reply
  2. Sarah Phillimore

    Amber – if you want to write a short piece about these organisations and what they can offer, we will consider it. However, any group that has clear links with either John Hemming or Ian Josephs is one we will have to treat with extreme caution, for reasons which I hope are obvious to anyone who spends any time on this site.

    We don’t believe vulnerable parents are best served by people who have an agenda, and who seek to promote that agenda over and above anything else.

    Reply
  3. Sarah Phillimore

    Amber – I have now edited this post to include reference to PAIN. If you think these comments are unfair or not representative of the work PAIN does, then you are welcome to provide more details.

    Reply
  4. Sam

    Can a judge decide on the day whether or not you may bring a Mckenzie Friend ? Potentially leaving you without support.

    Reply
  5. Sarah Phillimore

    McKenzie friends are allowed into court entirely at the discretion of the Judge who I assume can exercise this discretion at any time and grant or refuse to grant permission at any time.

    But I hope that most Judges, most of the time would not interfere with a litigant in person who wished to rely upon a McKenzie friend; it does raise issues around Article 6 I think. Provided the McKF can be trusted to behave responsibly and not disrupt proceedings, they should be allowed into court and should be allowed to address the court – is my view.

    Reply
  6. Pingback: Who can help me present my case to court? | Child Protection Resource

  7. Sam

    I know that lawyers have a duty not to mislead the court whilst inside the court does this duty extend not to mislead a LIP whilst communicating with them outside of the court please?

    Reply
    1. Sarah Phillimore

      Of course. To deliberately attempt to mislead anyone, be they Lip or fellow professional would be conduct likely to bring the professional into disrepute and should be punished by the relevant regulatory body.

      Reply
      1. Sam

        Thanks Sarah again that’s helpful. Just to add to your article ,you could also be exempt from court fees if you are employed and on a low income. Then if your salary is slightly too high you still may only have to pay part fees.

        Reply
        1. angelo granda

          Sam, Thank you for your information about court fees.Do you happen to know where a self-litigant stands on the question of compensation?
          Should he or she win the case, can the LA be ordered by the Judge to reinburse their reasonable costs and expenses?
          I have never been a self-litigant in any case.however, I did once act for myself in a civil court as respondent.I was faced with two barristers against me.
          We all went before the Judge .Despite having no court experience, I argued my case and won naturally!
          The Judge agreed with me and signalled his intention to find in my favour.
          At that stage he ordered a ‘stand-down’ to give us all a chance to think.They both conferred privately with their client. One of them approached me and asked me would I be happy if they dropped the complaint,meaning I would leave court without a stain on my character and without having to pay the sum claimed.

          I agreed and when we went back into court,the judge asked if I agreed to the arrangement and that is what happened without a full hearing.

          That is how I was out-manouvred by two experienced barristers! Whether you can say I was MISLED by them is another question.It was not unethical but very effectively saved their client a lot of money.Because there was no full hearing,I never got the chance to claim costs being so keen to get out of there into the fresh air! I stepped on a mine.

          Reply
          1. Sarah Phillimore

            Family cases are very unlikely to attract costs orders unless you can prove significant litigation misconduct, for e.g. the other side lying, being fraudulent etc, etc.

  8. angelo granda

    They are like politicians .They do have ethics and endeavour to be scrupulously honest ( especally barristers who have very high standards).
    However, it is the LIP’s responsibility not to be misled. When faced with the LA lawyer, at all times remember he has to outmanouvre you to win his case.
    When buying a used car or double-glazing, it is caveat emptor. It’s the same with lawyers,I think.If they offer a deal beware! If they suggest a compromise , beware! They won’t do either unless they have to do so as damage limitation.
    Once an LIP steps into the court arena, it is like a minefield. They are out to win their case.

    Listen carefully to the Judge.As the saying goes- JUST make your case and JUST make it clear!. Their response should already be clear to you too by the time you get to court.
    If they want a deal,they are probably on the run.They will keep a poker-face like a card player to outmanouvre you.

    Reply
    1. Sarah Phillimore

      I don’t attempt to ‘outmanoeuvre’ people. It isn’t some game. I either have a good case or I don’t. If I have a good case, I let the case speak for itself. If I don’t have a good case I will hopefully make sure my client knows that. I won’t trumpet to the other side that I think i have a weak case but nor will I try playing some silly game, which a judge would see right through in any event.

      If I talk to a LiP it is genuinely to try and broker some agreement or at least narrow the issues between us so we don’t waste time. I think LiPs ought to at least try to discuss the case with the other side but i appreciate this may be a scarey prospect for some.

      Reply
      1. angelo granda

        I know its not a game but it’s like a game of cards in a way because you either have a good hand or a bad one, I suppose.
        Unlike cards where the rules are fixed, of course,the judge decides the outcome.
        Perhaps LIP’s should do like the LA’s do and go into the fray emphasising the cp narrative strongly and attack the LA’s ,sw’s relentlessly, concentrate on presenting evidence of all the harm they are ‘likely’ to have suffered in care and the ‘risk’ inherent in the care system.Tell the Court of all the procedures the sw’s have already omitted to implement .Call the children to give evidence on video if necessary.
        Go through the welfare checklist in great detail and show how and when the children will be better off at home rather than waste time defending themselves against ‘possibilities and probabilities’.Attack may be the best form of defence.All the time keep repeating how willing you are to cooperate with the system!
        LIP’s must be very tough,I can’t imagine doing it myself.I would probably ‘dry up’ as soon as I stood up to address court.
        Correct me if I am wrong,Sarah,but I think you will have done Public speaking as part of your training.An LIP should do the same as part of his preparation..

        Reply
        1. Sarah Phillimore

          Yes, I agree that training and/or practice in public speaking is very useful. Many people are very nervous because it is unfamiliar to them.

          Reply
  9. Amber

    http://childprotectionresource.online/what-if-i-dont-have-a-lawyer/#comment-59492

    Dear Sarah,

    As this has resurfaced I should state that I resigned from Justice For Families on August 3rd 2015 as a unpaid volunteer because of my concerns with them breaching confidentiality leading to a hate campaign against me where the police are still involved- Hemming did not care & still represents the client which is deplorable; charging clients while being on full-time salaries; contacting the opposing party to the one I was assisting giving them confidential information; empty promises to pay me; not knowing what FDAC is & then just leaving the poor client in limbo with no apology (& other reasons). They did not get on the Family Justice Council which they applied for as a Parent Rep.

    I am still an adviser with PAIN and need to clarify we have no links to John Hemming. I am also with Citizens Advice where staff are trained. Alison, Chair of Pain is a qualified nurse & must be commended.

    http://tcbh.oxfordjournals.org/content/early/2015/07/27/tcbh.hwv024.full

    Reply
  10. Angelo Granda

    Sam, Self-litigants will be up against all the malpractice which most respondents meet when responding to LA litigation,i imagine. If we can remember what those are.
    I doubt if the LA will co-operate with a self-litigant and supply him or her with any hostile evidence which can be used in court against them ( unlike what they expect of parents).They may refuse to talk as they often refuse to engage with parents when they apply for a care-order. I doubt if the Judge will order SW’s to undergo psychological; examination etc. I doubt if a self-litigant will be allowed to see the children ALONE for the purposes of taking down on tape or video their wishes and feelings.
    SL’S could try telling the Court the CS are in denial and will not cooperate.If they do respond to complaints,watch out because it may be disguised compliance. For example some LA’s start to obey the rules and work properly with parents in the month or two before court.They may increase contacts,invite parents to educational reviews ,follow LAC Review procedures issuing minutes etc.etc., .Then once the case is over they will cut contact,abandon correct procedure and revert to normal practice.

    During care proceedings, if a family’s solicitor writes to the LA solicitor for evidence ,files etc.,requests are often simplky ignored; there will be no response.A self-litigant can expect the same. Also they should expect the Guardian to work and liaise very closely with the LA ( in cahoots) and be much less responsive with them. They will have little sympathy with a self-litigant ,i suspect.

    These are just a few difficulties i can think of. In family proceedings,when one has a real solicitor,even they cannot force the LA to cooperate because the LA is a law unto itself,it seems.

    Maybe a self-litigant or MKF will come on and add to this list talking from experience. I hope so.

    Reply
  11. Sam

    Angelo
    Yes there are numerous problems in the family court but the research was to address the additional burdens faced by LIP’s trying to decipher forms, understand the formalities, educate themselves about the law and cope with the emotional pressure without a lawyer. At least for a care order a parent automatically gets legal aid , the research was mainly based ( 75% I think) on private law where it has almost been abolished.
    Solutions certainly need to be found as the Government is very unlikely to backtrack .

    Reply
  12. Angelo Granda

    I know what you mean ,Sam, but ,as a layperson, it just annoys me when i see ‘research’ reports like the one on the link. It puzzles me that the writer should spend so much time discovering and writing up what most common parents have known for years which is that it is quite difficult for parents to bring cases as a self-litigant! Obviously ,non-lawyers will struggle without training and help resources should be available to help them and make it easier.
    Practical help is needed.A lot of self-litigants seek help from MKF’s as we know but those parents i know who have tried find it almost impossible to find one. There is no register of MKF’s to my knowledge and another difficulty is that vulnerable parents are often skint and can’t even afford to pay the MKF’s expenses even if they can find one. How much do they charge anyway?
    The problem has existed for several years, everyone has known about it for years; it is difficult and next to impossible to win as a self-litigant yet many say that they have a better chance of winning with an MKF’s advice than with a family law solicitor who has an apparent conflict of interests.
    I wonder if the success rate for SL’s compares favourably with that of parent who litigate with the help of the legal funding commission.
    SL’s need practical help and advice.IF they go to non-legal professionals for help , except that they can refer them to other non-legal professionals ad infinitum. The only ones who can really fight a case for them are real lawyers so the best solution will be for legal funding to be made available to all public Law family cases. The lives of children are at stake . If the children were to bring a case themselves one assumes that ( as minors) they would be granted non-means tested legal funding as a matter of course. They are unable to bring cases themselves and those with parental responsibility have to do it for them. Thus it is only right that they should be funded because they are acting for children .
    The problem does not exist in care proceedings ,funding is automatic. That is why we should call for automatic appeals where children are placed into care or placed for adoption with automatic funding likewise. That is a reform worth discussing but will it be?

    Reply
    1. Sam

      The research highlights that practical help is needed and gives examples of where it is offered . I do not agree that research is a waste of time, as over the last few years access to justice has drastically altered and is likely to keep doing so. Something has to be done to help LIP’s I don’t think there is ever going to be automatic legal aid for appeals, as I imagine just about everyone would appeal .

      Reply
      1. Angelo Granda

        I much appreciate your comments,Sám.
        I think Sarah and the majority of barristers will agree with me that it is wrong for the Government to deny legal remedies and justice to citizens by cutting funding as they did.The legal aid budget should be quadrupled.

        Alternatively,in Children’s Act Public Law cases,as the Local Authority represent the Public and bring cases ,using Public funds to do so, to be absolutely fair they should be forced to supply Public funds to pay for the respondent’s legal represention. There should be a level playing field.

        As far as an automatic right of appeal is concerned ( no need to apply for permission) the argument for that is simple and virtually undeniable as far as i am concerned.The parting of natural families ( removing children under permanence plans is the most drastic sanction. Indeed, as so often expressed by victims on this resource and by the head of the Family Division, we should look upon it as WORSE THAN CAPITAL PUNISHMENT. The long term mental torture and degradation, the pain and emotional harm involved etc. can be described as mental crucifixion.
        Those sentenced to death row have an automatic right to appeal either on procedural grounds or by way of a plea for mercy. How can any reasonable person argue against it?

        Anyone?

        Reply
        1. Sarah Phillimore

          I would rather that funds were put into intervention/prevention than on expensive legal cases. Better to avoid getting to court in the first place.

          Reply
          1. Angelo Granda

            Hear,Hear to that Sarah!
            If only the LA would understand that and train the CS to also.
            In the meantime,when it chooses to bring court proceedings , what to do if we don’t have a lawyer ? choose to

  13. Angelo Granda

    We should establish the rationale of non-means tested funding for care-order proceedings and transpose it because the same rationale will also apply to appeals and judicial reviews morally.
    When the original legal-funding is granted ,it should apply up to and including an appeal to the High Court not end on issue of a care-order.
    All comments welcome.

    Reply
  14. ian josephs

    Cutting legal aid is great news for parents who are usually gagged by their own lawyers who tell them to “go along with social services”They can now speak out andfrequently win their cases

    Reply
    1. Angelo Granda

      In the present state of affairs,i can see what you mean when you say that Sl’s ,with the aid of MKF’S have a better chance in court not being gagged.

      The state of affairs whereby respondents have a conflict of interests and pander to influences other than those of their clients and their children is unacceptable. That situation which is in contravention to Article 6 should also be reformed . I have previously suggested measures which would eliminate such conflicts.
      Combined with built-in guarantees that parents will not be gagged in such a way , i believe the restoration of legal funding to fair and reasonable levels ( a massive increase) will go a great way towards satisfying article 6. The increase in self-litigation and the need for MKF’s is merely a symptom of the existing unfair status quo,in my opinion. If we can address the fundamental problem then self-litigation will not be necessary. It takes a real professional lawyer to argue against the Local Authorities and /or the Guardian who both have access to lawyers.
      I am happy that you have joined this discussion ,Ian, given that you have legal training. Recent posts reveal on this resource and others that many professionals do not fully understand Article 8 law, various theories such as the one to do with attachment and so on. I would suggest, for the sake of discussion,that many professionals do not fully comprehend the Legal Aid rules either.
      Perhaps you would comment. The first sentence of the post at the head of this thread states the following:-
      QUOTE: 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 : UNQUOTE.

      Is that true,if so what exactly does it mean? As far as families are concerned judicial review , appeals, applications to discharge a care-order, residents orders ‘ supervision orders, placement orders and all the others are all care proceedings of one kind or another. Do solicitors wrongly think that only Local Authority applications are care-proceedings?

      The link i have referred to above suggests that morally, legal funding should be available and i agree with that. It is available,apparently in special circumstances in order to satisfy article 6. I say funding should be automatic and non- means tested.
      Comments welcome.

      Reply
  15. Sam

    Unless legal aid has been abolished for public law cases whilst I have been asleep a parent can automatically get assistance from a solicitor once a local authority says they are considering care proceedings. To say otherwise is dangerous to parents already highly stressed. It is however important for the parent, if possible to think what they want the solicitor to do, and it also helps for clarity to write it down. That doesn’t stop the parent for finding out as much as they can and asking questions. Yes some lawyers are about as much use as a chocolate teapot but others are great in my experience.

    Reply
    1. Angelo Granda

      Sam, you must have been writing that at the same time as i was writing my comment at 9.27am. so i did not see yours before submitting it.Do you see my point about all proceedings under the Children’s Act ,whether brought by LA’s or by parents are CARE PROCEEDINGS thus legal funding should be non-means tested and non-merits tested at all times?

      Reply
  16. Sam

    I can see your point. It is especially difficult for parents to hold the LA to account after a care order when procedures are flouted however the public purse is not endless and the reality is what it is.

    Reply
  17. Angelo Granda

    You have said before that you don’t buy the lack of money argument,Sám,and i agree with you.No-one should doubt that the Public purse is bottomless.It is topped up daily as a result of our daily work ,it receives an annual God-given boost at harvest time and generally there is a steady percentage growth in the economy .
    We are one of the most affluent nations.
    The Government control our wealth; In my opinion, it is a matter of PRIORITIES.
    The absolute priority is the human rights of citizens. They include the right to a fair trial under Artcle 6.
    Once they have guaranteed our human rights, only then should politicians start budgeting for other things, lower taxes,také their personal cream-offs etc. etc.
    Why should helpless children suffer inhumanity just because we aren’t able to get our priorities right.
    This is not about politics or money.It is about justice.We cannot expect highly qualified barristers to work for nothing.
    The profession have continually called upon the Government to restore equity and increase legal funding.
    THE PUBLIC SHOULD STAND UP AND SUPPORT THEM!

    Reply
  18. Sam

    Angelo You are taking my previous remarks out of context. What I said before related to provided support for families ( such as is the case in some other countries in Europe and Scandinavia) rather than care proceedings. Yes we are one of the most affluent nations but similar to USA the rich get richer and everyone else pays the price. Beyond a revolution I can’t see that changing, we are more inclined to moan about the weather.Yours is a different argument , which I don’t have strong views on.

    Reply
    1. Angelo Granda

      Thanks Sam.My argument is that the Authorities should get their priorities correct ,spend our resources on providing adequate legal funding to enable fair trials. More money should be put into free non-means or merits tested funding in ‘the best interests of children’.
      As a parent , I have strong views on this,as have members of the bar. I would sign any petition calling for it and would support any motion for it.
      Of course, i don’t expect everyone to have strong views on it. Never mind.

      Reply
  19. ian josephs

    Children Homes data pack 2014 – Gov.uk

    Using the data collected and approach adopted this year we estimate that the average cost of residential care provision per child per week is around £2,900 !!
    i.www.parliament.uk/briefing-papers/sn04470.pdf = VERY COMPREHENSIVE STATISTICS COMPILED FOR THE PARLIAMENTARY LIBRARY
    ii.Children Homes data pack 2014 – Gov.uk

    If there is no physical or sexual violence involved wouldn’t it be better spending some of this money helping law abiding parents to keep their children at home?

    :

    Joint Inquiry into Children Who Go Missing from Care

    Extract (point 9):

    Reply
    1. Sarah Phillimore

      Yes. That is the point I have been making for some years now. Why don’t you and Hemming and Booker and all the other Merry Band of Conspiraloons actually try agitating for that kind of change, rather then encouraging people to leave the country or believe that social workers get paid £30K bonus for child snatching?

      Why don’t you put your energies into something that might actually achieve something?

      Yes, I am aware this is a rhetorical question. I have long ago given up all hope that you might ever actually answer it.

      Reply
  20. ian josephs

    I think the number of “thank you” letters I get from parents who have recovered their kids after dumping their lawyers and using statements I have written for them indicate to me at least that I have been of occasional use to some of these unfortunate parents.

    Reply
    1. Sarah Phillimore

      Well that is lovely. Unfortunately I suspect the poor woman running terrified down a country lane trying to escape the Irish police in that video you sent me may well be living to regret having taken your advice to leave the jurisdiction.
      And she isn’t the only one, is she?

      Reply
  21. Angelo Granda

    Sarah,Just going back to the advice about writing a statement in the post above.. According to the Court protocol, is there a set limit on the number of pages or words in a statement? Or does it depend on each individual judge? One judge was very impatient,criticised an applicant for the length of her statement in open court and questioned why her solicitor had not abridged it. The relevance of parts of it was also questioned.
    I know you cannot comment on individual cases but what are the general rules?
    LIP’s,if there is a limit you should know about it and keep to it.

    Reply
    1. Sarah Phillimore

      The trend is definitely towards statements being shorter and there are calls for setting page or word limits but that hasn’t happened yet – I don’t think!
      But more and more judges will sometimes stipulate a maximum length for statements. Position statements are often limited to only two pages for example.
      But trial bundles are not supposed to exceed 350 pages without permission so this will have a knock on effect on lengthy statements.
      I don’t have a massive problem with his as I think it is a good discipline to set things out succinctly.

      Reply
      1. Angelo Granda

        I understand and agree that professionals will endeavour to be brief and succinct .However, the Judge should be clear that vulnerable parents are not professionals and as their Public Statements to Court apparently comprise their ‘evidence -in-chief’, i believe no limits should be placed on them. Not only should the length not be curtailed but neither should the content be limited for reasons of protocol. For example, clear evidence that a Guardian has made false statements based on wrong information should not be cut because it is deemed improper to question a Guardian.
        Of course, we should bear in mind too that parents are responding not only to SW evidence but also to that of the guardian,schools, medical reports of children,psychological reports of themselves,Police and so much more supplementary evidence used against them. A mass of pages! So each parent would soon build up 70 – 100 pages EACH. If a parent wanted to respond by putting his or her own examination of the welfare principle ( following the regular template) that might come to 10 pages .
        Summary evidence may well suffice in less serious cases ( especially in un-contested cases) but will never satisfy the requirements for Article 6 in serious cases where permanent removal is on the cards, in my opinion.
        All comments welcome.

        Reply
  22. ian josephs

    This Template can ce amended and adjusted to fit most cases !

    –Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort”, only to be made where “nothing else will do”, where “no other course is possible in [the child’s] interests”, they are “the most extreme option”, a “last resort – when all else fails” –Sir James Munby President of the family courts) in Re B:

    BEGIN YOUR STATEMENT LIKE THIS , then read it out aloud in court together with any quotations from judges plus helpful previous high court cases as set out below because lower courts must follow higher court principles and decisions if you remind them of them;

    Begin your statement for the court as follows:-(But miss out,modify, or change anything that is not true or anything that just does not apply in your particular case) and when you see the phrase “baby/child/children” “delete the two words that do not apply to you.

    1:-I have never neglected or abused my baby/child/children.

    2:-I have no criminal record (Most crimes are wiped clean from police records after periods varying from 6 months to 10 years depending on the crime ) ,and I have never been charged with a serious crime.

    OMIT THIS PARA IF YOU HAVE NO CRIMINAL RECORD:-Legal Aid, Sentencing and Punishment of Offenders Act 2012, Section 139 This came into force on 10th March 2014 and significantly reduce active conviction times. The changes are ‘retrospective’ and apply to offences before and after this time.If a person has a SOPO, the ministry of justice class this as an active criminal conviction. Therefore as a parent had it, his convictions were spent but his SOPO was keeping him from ticking the ‘no’ box on job applications. So 5 years after conviction he used the Sexual Offences Act 2003, Section 108, (6) to apply to discharge his SOPO meaning at that point . He was successful.

    3:-I have no problems with alcohol

    4:-I have no problems with drugs.

    5:-I have no mental problems, or learning difficulties.

    6:-I have never been involved in incidents of domestic violence .

    7:-My husband/wife/partner has a similar record.

    8:-My child/children have always been happy, well dressed,clean,and have a good attendance record at their schools,

    9:-My accommodation is very suitable and has always been kept clean and tidy.

    10:-My baby/child/children has/have been cruelly abused by the removal from my loving care.Contrary to section 8 (human rights act) that gives us all the right to a private family life undisturbed by public authority.

    11:My rights unders Article 6(human rights act) have been breached denying me the opportunity in determination of my CIVIL RIGHTS to speak in court in person to state my case , to call witnesses on my behalf and to cross examine witnesses called to testify against me.

    12:- The UN Convention on children’s riights give children the right to participate in proceedings that concern them.The former Minister for Children (Simon Hughes) emphasised that children’s voices must be heard in person and not through third parties;yet I have been refused permission to call my children as my chief witnesses to prove that I have never harmed them ,never neglected them,and that they all want to come home with me as soon as possible because they are very unhappy where they are in care.

    I also respectfully remind the court of the wise words of Hedley J in Re L (Threshold Conditions) [2007] 1 FLR 2050:

    “Many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or ‘model’ them in their own lives but those children could not be removed for those reasons.”

    Note also the observation of Baroness Hale of Richmond JSC (para 143):

    “We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse antisocial political or religious beliefs.”

    Reply
    1. Sarah Phillimore

      There is no point in just reading out some template document. You have to show that you understand the issues that relate directly to YOU and to YOUR children.
      If you just stand up in court and read this out then I am afraid that most judges will conclude you lack insight and understanding. It is unlikely to help you.
      Far better to engage with a lawyer you trust and actually deal with the issues in YOUR case.

      Reply

Leave a Reply

Your email address will not be published. Required fields are marked *