We have been speaking to Stephen Migdal, a local family law barrister, about his motivation for offering his services on a relatively small fixed fee which covers the whole case. He told us that he would not be alone amongst his barrister colleagues in pleading that
“Parents are the only people who can satisfactorily sort out child care arrangements”
He was of the firm view that lawyers should only be used as a last resort after a relationship breakdown but, recognizing that there are occasions when one or other parent simply refuses to come to an agreement, he wishes to offer an affordable alternative to those who risk becoming embroiled in litigation.
Using lawyers can cost between £5,000 and £10,000 for a child dispute that goes to a final hearing. Public funding (legal aid) is generally unavailable and legal costs are rarely recovered from the other side. It is for these reasons that in 60% of child cases at least one parent represents themselves.
But it is not the financial cost of using the courts upon which he bases his plea – it is the emotional cost to all involved, particularly the children. It is understanding this which results in 90% of parents sorting out the child arrangements themselves.
And what of the other 10%? In several different ways they expose themselves and their children to much stress and anxiety.
Once embarked upon, legal action rapidly acquires a life of its own. The participants find themselves losing control of their family’s destiny. New timetables, deadlines and events which may have no relevance to their or their children’s emotional reactions or needs will start to intrude. Although avoidance of delay is the policy of the law, cases can and do still take more than a year to be resolved.
Legal action tends also to dehumanise. Your lawyers will be working for you and their job will be to represent your points of view and to discredit those of your partner. Your partner’s lawyers will be doing exactly the same thing. The process of discussing your claim and assembling evidence will mean you’ll be talking about, not talking to, your partner. Whilst intended to encourage an attitude of reasonable compromise, these legal formalities sometimes have the opposite effect
Legal action also makes your problems more public in the sense that litigating parents understandably require comfort and support to see them through. Friends, relatives and new partners will weigh in with their own opinions, well meaning or otherwise. Most will take sides so adding to the atmosphere of confrontation. The common net result is that the children lose contact with one set of grandparents.
So think very carefully before abandoning attempts to resolve child care amicably with the other parent. If you have children you will still need to have a relationship with your ex-partner after any separation. The steps you take at this stage will determine whether this new relationship is co-operative and communicative or divisive and destructive.
Children are usually desperate to see their parents interacting and if parents can barely look at each other the children will suffer emotionally. They may also tell each parent what they want to hear so that, often, it is reported that a child doesn’t want to visit the other parent. Some parents try to involve the children in the dispute so that they report favourably when spoken to by CAFCASS (the court appointed welfare officer). None of this helps make what the children report reliable, even assuming they should have to get involved in such things in the first place.
The breakdown of the parents’ relationship can lead to children developing physical and psychological illnesses. School work and friendships can suffer. And research shows that, in the longer term, children who experience divisive family situations first-hand are more likely to recreate these in their adult lives.
But what can a separating couple do if they can’t communicate directly with each other? Luckily the 10% of couples who can’t arrange child care with their ex-partner still have a some options even if they do end up in the family court.
The court process encourages mediation (ie parents using a third party to facilitate an agreement) wherever possible. Public funding may be available to cover the cost of mediation but if not. there are a number of professional mediators offering their services at reasonable costof perhaps £100 in total for the first session. So, no matter how pessimistic you may be, you should consider trying at least one session to see whether there is ground for partial agreement at least. Note that mediation is considered unsuitable where there is a history of domestic abuse.
You should consider representing yourself. The reality is that once you are before the family judge you will be met with an empathic approach in a relatively informal environment. You will be listened to and the judge will stamp on any perceived bullying by the other side’s lawyer. You will certainly receive a fair hearing.
The often off-putting problem, however, lies with the prior procedural requirements needed to get you before the judge. The application forms are lengthy and the processes not straightforward. But if you do decide to take this route, there is an excellent book aimed at litigants in person written by Lucy Reed, a very well respected Bristol-based family barrister: Family Courts without a Lawyer: A Handbook for Litigants in Person (Revised 1st Edition: March 2013). There are also numerous informative family law blogs including Marilyn Stowe, John Bolch and Pink Tape.
Finally, the “last resort”; consulting a Family Law Barrister on a direct access basis (ie no need to use a solicitor) who will encourage settlement and provide counselling and guidance but, if necessary, advise and fully represent you in court. The fee may well be fixed (relieving financial concerns) but, usually, separately for each of the three hearings rather than the whole case. Few like Stephen Migdal offer a fixed fee for the whole case.
For a totally without obligation and confidential consultation, please contact Stephen Migdal on either 07917 766363 or [email protected]