Do I need a barrister for family court?

The answer in 30 seconds

No.

You do not need a barrister to go to family court.

You can:

• represent yourself;
• use a Solicitor;
• use a Solicitor who instructs a Barrister for particular hearings;
• instruct a Direct Access Barrister yourself where they accept this type of work; or
• use different types of professional help at different stages of your case.

A Barrister can be particularly useful for an important or complicated hearing.

But:

Useful does not mean required.

Whether paying for a Barrister makes sense depends on:

• the type of hearing;
• how complicated the case is;
• whether evidence or allegations are disputed;
• whether witnesses will be questioned;
• how confident you feel speaking in court;
• what preparation you can manage yourself; and
• what you can realistically afford.

1. What is a barrister?

A Barrister is a lawyer.

Barristers are particularly associated with:

• representing people at court hearings;
• making legal arguments;
• advising on difficult points of law;
• questioning witnesses where appropriate;
• responding to arguments made by the other side; and
• advising on the strengths, weaknesses and risks of a case.

In a family court case, a Barrister might represent you at:

• a first hearing;
• a directions hearing;
• a dispute resolution hearing;
• a fact-finding hearing;
• a final hearing; or
• another important hearing where legal argument or evidence needs to be dealt with.

A Barrister does not decide the case.

The judge or magistrates do that.

The Barrister's job is to present your position as effectively as possible within the law and the evidence available.

2. Do I have to have one?

No.

There is no general rule saying that a parent involved in private family court proceedings must have a Barrister.

Many parents represent themselves.

This is usually called being a:

litigant in person

or:

self-represented party.

If you represent yourself, you are responsible for things such as:

• understanding the court orders;
• preparing documents;
• filing documents on time;
• communicating with the other party or their legal representative;
• attending hearings;
• explaining your position to the court; and
• following directions made by the judge.

Some people are comfortable doing that.

Others decide they need professional help for all or part of the process.

There is no single correct approach.

3. What does a barrister actually do at a hearing?

This depends on the type of hearing.

At a relatively short hearing, a Barrister may:

• explain your position to the judge;
• deal with legal or procedural questions;
• respond to the other party's arguments;
• help identify what issues need to be decided; and
• ask the court to make particular directions or orders.

At a longer or more complicated hearing, they may also:

• question witnesses;
• challenge evidence;
• make detailed legal submissions;
• deal with allegations and findings;
• refer the court to relevant documents; and
• make final submissions about what order should be made.

This is one reason Barristers can be particularly valuable at hearings where a lot is at stake.

4. Getting a barrister through a solicitor

The traditional route is to have a Solicitor managing the case and for that Solicitor to instruct a Barrister when needed.

In that arrangement, the Solicitor will usually deal with much of the day-to-day work.

That may include:

• correspondence;
• preparing documents;
• reviewing evidence;
• dealing with court directions;
• organising the court bundle;
• communicating with the other side;
• advising you between hearings; and
• preparing the case for the Barrister.

The Solicitor then sends the Barrister the relevant papers and instructions.

The Barrister may be brought in for:

• advice;
• a conference before the hearing; or
• representation at court.

This can provide a high level of support.

It can also become expensive because you may be paying both:

the Solicitor

and:

the Barrister.

5. What is a Direct Access Barrister?

Some Barristers can be instructed directly by members of the public without using a Solicitor first.

This is commonly called:

Direct Access

or:

Public Access.

Instead of your Solicitor choosing and instructing the Barrister, you contact the Barrister or their chambers yourself.

You explain:

• what the case is about;
• what hearing is coming up;
• what work you need;
• what documents are available; and
• when the hearing is taking place.

The Barrister can then decide whether they are able to accept the work.

Not every Barrister accepts Direct Access instructions.

6. Does a Direct Access Barrister take over my whole case?

Not necessarily.

This is an important distinction.

A Direct Access Barrister may agree to:

• advise you;
• review important documents;
• help with a particular legal issue;
• draft certain documents; or
• represent you at a hearing.

But that does not automatically mean they will manage everything a Solicitor would normally manage.

You may still be responsible for:

• filing documents with the court;
• serving documents on the other party;
• communicating with the court;
• organising papers;
• dealing with deadlines;
• preparing information for the Barrister; and
• managing the case between hearings.

Some Barristers have additional authorisation that allows them to carry out more litigation work.

Others do not.

Before instructing a Direct Access Barrister, ask clearly:

What will you do?

and:

What will I still need to do myself?

Do not assume that booking a Barrister for a hearing means somebody has taken over the rest of your case.

7. When might a barrister be useful?

You may want to consider using a Barrister where the hearing is particularly important or complicated.

For example:

• a fact-finding hearing;
• a final hearing;
• serious allegations are being considered;
• several witnesses will give evidence;
• somebody will need to be questioned;
• there is a complicated legal issue;
• the other parent has experienced legal representation;
• the case involves a large amount of evidence;
• you find it difficult to speak clearly when under pressure; or
• the outcome of the hearing could have a major effect on your relationship with your child.

A Barrister may also be useful even if they do not represent you throughout the entire case.

Some parents represent themselves for routine stages and pay for professional representation at one particularly important hearing.

That can sometimes be more affordable than paying for full representation throughout the case.

8. When might I decide not to use one?

You may decide to represent yourself where:

• the hearing is relatively straightforward;
• the issues are narrow;
• there are no complicated allegations;
• you understand the documents;
• you are comfortable explaining your position;
• you can prepare properly; and
• paying for representation would create serious financial pressure.

Cost matters.

Family court proceedings can become expensive very quickly.

Do not assume:

If I spend more money, I will get a better result.

A Barrister cannot guarantee an outcome.

They cannot change the evidence.

They cannot control what the other parent says.

They cannot control Cafcass.

And they cannot control what the judge ultimately decides.

Professional representation can help you present your case.

It does not guarantee that the court will agree with you.

9. How much does a barrister cost?

There is no single price.

Fees can depend on:

• the Barrister's experience;
• the type of hearing;
• how long the hearing is expected to last;
• how much preparation is required;
• how many documents need to be read;
• how complicated the case is; and
• whether the hearing runs longer than expected.

A short hearing can still cost a significant amount.

A multi-day fact-finding or final hearing can become very expensive.

Before agreeing to anything, ask for:

• the fee in writing;
• exactly what the fee includes;
• whether preparation is included;
• whether a conference is included;
• what happens if the hearing is adjourned;
• what happens if the hearing runs into another day; and
• whether any additional fees may be charged.

For a fuller explanation of how quickly family court costs can build up, read:

How much will family court cost me?

10. What are my other options?

A Barrister is only one option.

Depending on your situation, you might:

• represent yourself;
• use a Solicitor;
• instruct a Direct Access Barrister;
• use a Solicitor and Barrister together;
• use a McKenzie Friend where appropriate; or
• pay for limited professional help at particular stages.

Each option has advantages, disadvantages and different costs.

For a comparison of the main options, read:

What are my options for representation in family court?

That guide explains the differences between the main ways of getting help and representation.

11. How should I decide?

Ask yourself:

What kind of hearing is this?

A short directions hearing is very different from a four-day fact-finding hearing.

What could happen at the hearing?

Think about what the court is actually being asked to decide.

How complicated is the case?

Consider:

• allegations;
• evidence;
• witnesses;
• Cafcass recommendations;
• expert reports;
• previous findings; and
• complicated legal arguments.

What can I manage myself?

Be realistic.

Can you:

• prepare documents;
• understand the court order;
• identify the important evidence;
• speak clearly in court;
• stay calm under pressure; and
• respond to arguments made by the other side?

What can I afford?

Do not commit to thousands of pounds of legal costs without understanding:

• what you are buying;
• what work is included; and
• whether there are less expensive ways to get the help you need.

Quick checklist

• I know that a Barrister is not compulsory.
• I understand what a Barrister actually does.
• I know the difference between using a Barrister through a Solicitor and Direct Access.
• I have checked what work the Barrister will and will not do.
• I understand what I will still need to manage myself.
• I know what type of hearing is coming up.
• I understand the fee before agreeing to it.
• I have considered whether limited representation would be enough.
• I have compared the other representation options.

Final reminder

You do not need a Barrister simply because you are going to family court.

A Barrister can be extremely useful, particularly for an important or complicated hearing.

But:

A Barrister is professional help, not a guarantee of success.

Understand what the hearing involves.

Understand what you can manage yourself.

Understand what the Barrister will actually do.

And understand what it will cost.

Then decide whether paying for that help makes sense in your case.