There have been several published cases in recent weeks where litigants and their advisers faced criticism over litigation misconduct. Several other cases have arisen which show suspect advice had been followed by the litigant.
The purpose of this article is not to level criticism, but to help people avoid legal advice and advisers who can damage their case and their relationships. In days of social media, advice is coming from forums, Facebook groups and a whole manner of other places including friends, family, the local neighbour and the bloke on the end bar stool down at the pub. Not all advice is good, and some advisers should be avoided.
Remember too, that you should not be giving out information on public social media which might identify your child as being involved in family court proceedings. It’s contempt of court and could damage your case. You should seriously consider avoiding people who answer your questions on social media without warning you of this. If you must ask advice on social media, set up an anonymous profile. Your own photo tends to identify you and as a result, your child!
Over years, I’ve seen plenty of people giving lay advice. The following are those who should be avoided, and reasons why.
The Conspiracy Theorists: These include people who say all judges/social workers/CAFCASS Officers/lawyers are corrupt. They’re not. As with all professions, you get good ones, bad ones, and ones who make mistakes (human ones). Those who claim there’s a great feminist conspiracy which governs court outcomes are a little deluded. Social attitudes in the courts sometimes lag behind changes in society. If you look back to the 1980s, you had judgments which questioned men wanting to be involved in childcare as being unnatural (and these comments made by male judges) and occasionally you see similar comments in the new millennium. It’s not a feminist conspiracy behind it, but a matter of people basing their beliefs as to normal family life upon their own childhood experiences. It’s more a generational issue than one related to gender and is one which is changing.
Daft ideas and beliefs spring up on the fringes of family law from time to time, but they are on the fringe and dealt with when people put forward objective arguments. You want objective advice, not advice which is emotional and paranoid in some cases.
The Doomsayers: Some people have bad personal experiences in court. This doesn’t mean they offer bad advice and it may be that that bad experience motivated them to help others. The good advisers keep that historic experience separate from individual case work and deal with their emotional baggage. The Doomsayers can’t do this. When they claim things like “you can’t get justice from the family courts” what they’re saying is they can’t get justice. Do you really want them advising you?
Outcomes aren’t guaranteed, but there are many good (or not that bad) outcomes in court. You’ll never know for sure why someone had a bad outcome unless you were personally involved in their case and had sight of all the evidence and heard oral evidence. Without this information, it’s impossible to tell if they experienced unfairness, or if poor conduct or poor arguments were a factor in what they perceive as poor outcome.
The Published Empathics: You’re likely to come across forums, social media pages, blogs, legal advisers and even charities where people/officers discuss their own cases publicly (including on their own web sites). They don’t understand family law or the basics on confidentiality. Do you really want to rely upon their advice? This should ring your warning bells (it does ours!).
The Don Quixotes: Watch out for people who repeatedly use the words malfeasance or misfeasance as they recommend complaints, judicial reviews and contempt proceedings against all and sundry. As well as in their own case, they get caught up in their personal crusade to the exclusion of reason and push other people to challenge the system with insufficient thought as to risk to those individuals. These people are often so caught up in what they think is right that they lose sight of the need to put forward arguments which the court will agree with. At times they entirely miss the issues which are important, instead chasing windmills which aren’t relevant to the case at hand. Signs to watch for include those who use the words ‘parental alienation syndrome‘ and those who wish to challenge the privacy of family law proceedings in individual cases (and they way in which they do it) or seek to wage war against welfare services. While parental alienation is recognised by the court and can be a serious problem in cases, parental alienation isn’t a psychological syndrome. Those who don’t get this are unlikely to understand some of the subtleties of court or law (or knowledge of the subject of alienation). Do you want someone helping you who’s waging a personal vendetta, or someone who wants to help you get the best outcome you can?
The Martyrs: They profess to be the ‘only ones’ who can save you. They claim to bear the entire burden of everything on their shoulders as they keep reminding their small but fervent group of evangelists who follow their blogs. Check how much they charge because hair shirts don’t come cheap especially when they publicly rend them! Remember when you hear claims such as theirs, that no-one has a monopoly on good advice.
The Saints: Not as extreme as the Martyr, but ones who repeatedly proclaim they are overloaded, emotionally involved, traumatised by their clients’ experiences etc. Good advice is objective, and a good adviser while sympathising with a client, needs to be objective and to some extent remain emotionally detached.
The James Bond: These are the ones who tell you to record contact, contact handover, and welfare interviews. Rarely, the courts may allow such evidence to be entered, but more often it makes the litigant look paranoid and controlling. If you are advised to use covert recording (and I don’t think you should due risks of how you may be perceived), if the adviser doesn’t raise those risks with you, they’re negligent.
The Baresarks: Baresarks (or beserkers) were Viking warriors who worked themselves up into a frenzy and then rushed naked into battle waving their axe wildly and shouting “off with their heads” (“jail them all” being the modern court equivalent). They don’t think of consequence, whether it is the risk to the parent/child relationship of one parent seeking to commit the other to jail, or the risk of the litigant being viewed as vexatious, controlling, obsessive or unpleasant when they go into court aggressively. The problem with vexatious approaches is they’re also more likely to see costs awarded against.
If they must think in militaristic terms, I wish they’d read a little Sun Tzu, a Chinese general and strategist who lived 2000 years ago and wrote “Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win” and better “The supreme art of war is to subdue the enemy without fighting.”
If you rush into battle emotional and naked, don’t be surprised if you get caught with your trousers down. Think, take objective advice, and then think again! You’ll live with the consequences, those advising you will not.
For the litigant: if you spot an error in a welfare report, don’t call a social worker a liar but instead point out that there has been a mistake and raise this orally at the next hearing and in a position statement. Another bit of Sun Tzu wisdom was “Build your opponent a golden bridge to retreat across.” Don’t go on CAFCASS’s Facebook page writing “all social workers are corrupt.” Don’t swear at the judge or throw dagger looks at your ex in court. While cases may be won by clever points of law, more often they’re lost through a lack of common-sense, aggressiveness, a lack of preparedness, poor choices and low emotional intelligence.
For advisers: don’t blog that you want every member of the public to email a judge in a case you’re advising on to influence them, and then talk about your representing the litigant when you’re not a solicitor (*head*thunk*desk*). Think through consequences, risks and rewards of proposed strategies and remember it’s for the litigant to decide on which course of action to pursue. If you go to court as a McKenzie Friend, at least have read the President’s Guidance and ideally the Legal Services Act.
A final bit of sage Chinese wisdom for all… “If you want revenge, dig two graves.”
Two guides to help:
ABC – Attitude Behaviour and Conduct