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Today I came across this one: Family Law Decisions. It’s a professional looking and streamlined website and I have no reason to think they do not match up to the promises set out there, or that they mislead in any way. But there are key differences between what you can expect from a non-legal support service of this kind and from a lawyer or law firm.

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Services like these tread very close to the dividing line between non-legal advice and support on the one hand, and legal advice and representation on the other. There are risks in my view, of obtaining legal services from non-lawyers. And when one scrutinises this and other similar services this is at heart what is offered. First hand experience does not necessarily equip one to provide impartial and legally sound advice. Emotional over-involvement can make for poor judgment: empathy is intoxicating for both client and adviser.

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Family Law Decisions website offers the following services:

• Guidance on options
• McKenzie friend in Court
• Drafting documents (identified as pleadings, skeleton arguments, submissions)
• Lay advocacy
• Advice on procedure and law [my italics]

Wait a second: didn’t it take me three years of postgraduate training and years of on the job practise to get good at just those things? That someone would hold themselves out as competent in the skills listed above without any formal training makes me a teensy bit anxious. Without a shadow of a doubt, had I tried to carry out my job without undergoing training and shadowing (pupillage) I would have made a right old b*lls up of it, to use the vernacular.

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Family Law Decisions is not unique in packaging itself in this way, as a range of services offered by non-lawyers, but I use it as an example. For the provision of these services they charge £40 per hour. Nice work if you can get it I say: it compares quite favourably with the rates of pay for legal representation by qualified lawyers on legal aid.

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Does it matter if the person helping you with your case  is not a lawyer? Perhaps. There is a fine line here. Under the Legal Services Act 2007 it is an offence to carry out reserved legal activities unless you are authorised or exempt. The conduct of litigation and exercise of rights of audience are so reserved. But, under the Act there is no regulation of the provision of the services listed above (they don’t seem to fall into the definition of ‘conduct of litigation’) and it is not an offence to provide them (Where a judge gives a McKenzie a right of audience in a particular case they are exempt). So there is no legal obstacle to say Family Law Decisions should not operate in this way on an unregulated basis -i.e. without scrutiny from the Law Society, Bar Council, LSB, Ombudsman – nobody.

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I’m not knocking the valuable assistance McKenzies provide many who cannot afford a lawyer or who are ineligible for legal aid. But if you can pay £40 per hour for unqualified advice, unqualified representation (which might not be permitted on the day) and for the drafting of legal submissions and other documents by unqualified persons well – why not spend that £40 an hour on proper legal representation?

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The answer for some lies in their lack of faith in the legal profession – steer clear of lawyers at all costs, they are crooks (or so it goes). But think about it: If your solicitor or barrister provides an inadequate professional service or is negligent you can pursue that via a claim, safe in the knowledge that their mandatory professional indemnity insurance will not leave you high and dry and / or via the relevant regulator. What happens if your unqualified lay representative, adviser or draftsperson messes up? Yep, have fun with pursuing redress there.

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And think about this.  Family Law Decisions says in its FAQ section that:

I want to limit or stop the other parent spending time with our children, will you help me?

No (generally). We passionately believe in doing what is best for children. Research supports our view that shared parenting or near is best for children. Unless there are proven or likely to be proven risks of harm to children we will not assist in limiting or stopping children’s time with another parent. See our Children page for further explanation of shared parenting.

All fine and dandy – such a policy is their prerogative and it is clearly set out on their website for all to see. So fine and dandy – if you happen to share that ethos. And if you can persuade them of the risks of harm to the children. What if they don’t like the cut of your jib or just don’t believe you? What if you decide half way through a case that you can no longer support shared parenting for your child  - will they leave you high and dry? There is no cab rank rule to stop them picking the cases they fancy and the section 188 Legal Services Act 2007 duty to the court to act with independence in the interests of justice does not apply. No legal training and no ethical training either. None of which means they will act in any way inappropriately, but the point is that you have no safeguards to ensure that they do. If you are happy to rely on a few testimonials that’s your risk to take.

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The positive potential is for a client whose case fits well with the ethos of the organisation, to enjoy a wholly supportive experience from people who will go that extra mile to support the principle in question, where solicitors with an eye on questions of cost benefit and means / merits tests would wave goodbye. But there is limited legal protection for you if your experience is less than satisfactory.

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Lest there be any misunderstanding, I’m not being critical of the service provided by this particular organisation, but it is important to think before engaging the services of non-lawyers – especially if this is on a ‘paid for’ basis – about the reduced protection and lack of formal training and regulation may mean. It might look like a cheap way of achieving an approximation of legal advice and representation, but as outlined above it is in some respects very very different.

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Be aware that if you are engaging an organisation with an agenda, such as the agenda for shared parenting referred to by Family Law Decisions, there is a risk that your interests as client may be subjugated to the pursuit of the agenda. And whilst many McKenzies are undoubtedly experienced, articulate, and forceful negotiators, I would be wondering if at £40 p/h I was paying for the provision of a professional service or a campaign levy.

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I know that there are many litigants out there who have had or expect a poor service from lawyers or the family justice system (see for example my previous post on Solicitors from Hell) and I am alive to the suspicion and distrust with which we are often regarded. Sometimes that is because a client has had a genuinely poor service. But my distinctly non-legal advice is this: enlist the support of non-lawyers by all means but do go into it with your eyes open. It’s not necessarily an antidote to the perceived corruption of lawyers or the system in which we work. And at £40 p/h it could burn a hole in your pocket worthy of any aspiring fat cat.

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The Law Society is also seeking counsel’s opinion as to whether the site’s modus operandi – removing references to firms in exchange for payment – amounts to extortion.

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I sense there will be more on this story in due course…

Binary Law thinks small is beautiful, but I wonder how many small legal aid firms are feeling the same? Small is vulnerable I think.

In recent months there has been a marked increase in the number of public law children cases in which the Official Solicitor has been asked to act. The steady increase in Official Solicitor’s family litigation case load shows no sign of having reached a plateau.

In the letter the Official Solicitor reiterates that his staff should be used as last resort and that practitioners should ascertain from their clients if all other options for representation have been exhausted before seeking to make an application to his office.

If all alternative avenues have been exhausted, then the Official Solicitor is asking practitioners for specific information and an indexed file to assist with the decision making process. This is a much more detailed request than hitherto and is more specific than the questionnaire that has existed for a number of years.

In the letter, the Official Solicitor states: “New cases have been and will be placed on the Official Solicitor’s ‘waiting list’ when this office has received a formal invitation from the court by way of sealed order and the capacity evidence is viewed by this office as satisfactory. They will be ‘accepted’ only when the acceptance criteria are satisfied and there is a case manager who can manage the case. Save in exceptional circumstances, they will be accepted in strict chronological order starting with the earliest on the list”.

This of course is a factor particularly in care cases where one of the parents is mentally unwell or unable to understand the proceedings, which causes delay to the already slow process of deciding outcomes for children in foster care.

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But most lawyers do at least maintain a certain sense of decorum, and we can agree to disagree on our client’s respective positions, and operate courteously even in the face of the most divergent of instructions. I cite as one example the case of Arkell v Pressdram. Brilliant.

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Although barristers are still not permitted to conduct litigation, and although many family cases will remain unsuitable for the instruction of a barrister without a solicitor being involved, in the right case a client may be able to significantly reduce her legal costs by instruction of a barrister direct.

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You can find detailed information on the changes and how they are likely to operate in practice in the revised Guidance material here on the LSB website. The Guidance indicates that cases involving children are likely to be unsuitable for this kind of instruction, but whilst no doubt this is correct there will be instances where it will work perfectly well, for example perhaps where a litigant in person wishes to continue representing himself in respect of a children matter but wishes to obtain a one off written opinion or guidance about the future of the case or how he should go about things, which may well be cheaper than retaining a solicitor or even simply asking them for ad hoc advice.

I am in a minority of family barristers qualified to offer these new services to date, and I expect to be dusting off my Public Access File in the coming months…

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This view of course rather overlooks the fact that this is what barristers DO – take our legal training and advocacy and evidential skills and apply them to specific sets of facts or niche areas. It overlooks also of course the fact that many of the lawyers offering services via FRU and particularly the Bar Pro Bono Unit will have vast prior experience of tribunals of this kind or of social work practice (for example as care practitioners).  And it overlooks the fact that it would be professional misconduct for a barrister to hold herself out as competent to handle a case if she were not equipped to do it justice.

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On closer reading what this storm in a teacup appears to be about is the fact that the General Social Care Council are sending out material to those who are involved in conduct hearings relating to FRU and BPU representation but are not presently sending out equivalent material from the BASW. Of course there may be issues for the GSCC about appearing to endorse a particular union (and indeed conversely for the BASW in appearing as independent from the GSCC), but I can’t see any reasoned objection to sending a straightforward list of sources of representation available to social workers who are in hot water.

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It’s unfortunate that in pursuing the broader marketing of its member services the BASW has seen it as necessary to run down the services offered by barristers for free.  Whilst any representative dealing with a conduct hearing will need to understand something about social work practice, this is information which barristers are quite able to elicit from clients (or indeed from a supportive trade union), whereas the specific expertise of the bar qua lawyers should not be underestimated. If the BASW really wants to assert that the services offered by the bar are substandard or inferior to those it offers itself it should publish comparative success rates and make the point properly. At present this has the unfortunate impression of being more of a territorial spat than a demonstration of the BASW’s interest in ensuring that social workers are afforded proper representation from whatever source. A constructive approach would be for the BASW to offer to share its expertise in social work good practice to FRU and the Bar Pro Bono Unit by working collaboratively with them.

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The lovely security guard at Bristol has told me I’m ‘blooming, no really blooming’ (transl: wow you are MASSIVE) fifty times if she’s told me once, my client last week compared me to a skittle, and in certain courts I can’t fit behind the bench without almost toppling backwards into plebs row.

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It won’t be long now. Of course I will keep blogging (in fact I was strangely prolific last time I was on maternity leave), but this is just to say: if you notice a gap in posting don’t go away for ever. I will be back and I expect you lot to be too.

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But for now at least, I am still rolling (quite literally) from one hearing to the next, reassuring all my clients that they are getting two heads for the price of one, and a funny walk to cheer them up.