Barrister in ‘No Duty to Child’ Shock

One of the first things we are taught in bar school is that our job is to ‘promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person’ (pa 303). Hand in hand with that duty goes the overriding duty to assist the court and not to mislead it either knowingly or recklessly (pa 302).


But how does that duty to fearlessly defend the client and her interests operate in cases involving children? I have often had it suggested to me that my primary duty is to the child(ren) in a case, but in fact that is not strictly correct. So what is the position?


Paragraph 302 and 303 of the code of conduct continue to apply and to govern what we do when representing a party (whether that be a parent, a spouse, a child, a local authority or another relative). In addition to the duties mentioned above those paragraphs also state that:

  • as between professional and lay client (solicitor and ‘punter’ if you like) the primary duty is to the lay client (‘punter’), and
  • that in publically funded cases there is also a duty to the Legal Services Commission (which is essentially to inform the LSC if a client for reasons of merit or means is no longer entitled to the benefit of public funding. You can read those parts of the code of conduct in full here.


Although the Children Act 1989 governs much of what the family courts do each day – in particular the principle enshrined in s1 of that act that the welfare of the child is paramount – it is important to remember that it is judges not barristers that are bound by the Children Act – our behaviour is regulated by an ethical code, it is our advice to a client that is circumscribed by the law.


There are other pieces of guidance which apply specifically to family work: for example the guidance note: Disclosure of Unhelpful Material Disclosed to Counsel in Family Proceedings which can be found here or the guidance note on Illegally Obtained Evidence in Civil and Family Proceedings which can be found here.  The most important principle which can be drawn from the former is that there is a duty of full and frank disclosure upon the parties and their legal representatives in all matters involving children, as of course is also the case in relation to ancillary relief matters. As rightly identified in that guidance note there is a general ‘practice in which all matters concerning issues in family law cases are routinely disclosed, the client being advised that there is no possibility of preventing disclosure even of matters which would seriously undermine the case’. The only exception in relation to that is where legal professional privelege applies (broadly communications between lawyer and client).

Plainly the enhanced duties of disclosure which have emerged in family law arise in the main from the need to ensure the court is in a position to properly assess and ensure the welfare of the children affected by his decision, regardless of the position adopted by the respective parties. Counsel must continue to fearlessly defend his client and set forth his position but she must do it on the basis of full and frank disclosure. The rule is so important that if a client refuses to give consent for the disclosure of relevant material counsel must withdraw and cannot continue to act, not because of any duty to the child, but because it would be a breach of the duty owed to the court.


Of course on a practical level one is usually working towards the welfare of the children – whatever my client’s instructions are they are almost always given with the genuine belief that they are in the best interests of the children. The reason we are at court in most cases is precisely because the parties differ frequently and significantly about what is and is not in the best interests of the children – there is a common purpose if not agreement about how to achieve that purpose. Even on days when it does not feel as if we are working towards the welfare of a child because the position I am being instructed to take on behalf of a client is so wrongheaded, it is my job along with my opponent to put forward the opposing viewpoints so that the judge can make a good decision.


So both in terms of gently suggesting to a client why it is that the position she is putting forward might not be the best solution for the child (have you thought about this…do you think Billy might find it easier if such and such happened instead?), or in terms of trying to explain to a litigant in person or an opposing lawyer why the position we are putting forwards is welfare driven (no, its not because she wants to inconvenience you for the sake of it, its because a six hour car journey for a child is a bit much all in one day), we are – indirectly – promoting the welfare of the child.


Again, in terms of advising the client of the prospects of success and trying to promote an agreed outcome and reduce conflict we are indirectly promoting the welfare of the child. When we deal with directions and case management so that a case can proceed smoothly and swiftly to a conclusion with the right evidence and without unecessary delay we are indirectly promoting the welfare of the child.


And in terms of setting out clearly and articulately for the judge what the options are and why one may be better than another – ensuring that both parents are equally able to explain their concerns and their wishes, we are indirectly promoting the welfare of the child.


So no, we don’t directly owe a duty to the child (unless of course we represent the child). But in ‘fearlessly defending’ our client whilst also complying with our duty to assist the court we are part of the process that is designed to promote their welfare.


And although the phrase ‘fearlessly defend’ is a peculiar, perhaps archaic and awkward phrase to find in the field of family law, that conjures up imagery of battles and conflict, what is really signifies is that assisting the court also means not being afraid to say to the Judge ‘No – that is wrong’. We say it politely ‘with respect’ (almost always), but we say it nonetheless.


NB: This system falls down where there is not equality of arms, so for example where a litigant in person finds it hard to articulate their position through intimidation or lack of oral ability. A judge will usually try to ensure that the balance is struck fairly by assisting a LiP, and the courts are increasingly willing to allow a McKenzie Friend to assist a LiP. It is also clear that lawyers owe a duty of fairness to a Litigant in Person, although this is not prescribed in the code of conduct it is in my view a part and parcel of the overriding duty to the court. Nonetheless, as the numbers of LiPs increase and there is more pressure on court time and significant downward pressure on counsel’s fees in publicly funded cases, the likelihood of the system becoming unbalanced in individual cases increases. The system currently relies heavily upon the assistance of representatives to the court, and in the years ahead this may need to be adjusted or recalibrated.

McKenzie Friends – Updated PD

The Practice Direction on McKenzie’s has been amended to take account of the recent judgment in N (A Child) [2008] EWHC 2042 (Fam). In short, exceptional circumstances are not a prerequisite for the grant of rights of audience to a McKenzie Friend: although the starting point is that this will not ordinarily be permitted a McKenzie can address the court where an application is made and good reason is shown.


The PD Now includes the following amended section:

Rights of audience and rights to conduct litigation


  • Sections 27 and 28 of the Courts and Legal Services Act 1990 (the Act) respectively govern rights of audience and the right to conduct litigation. They provide the court with a discretionary power to grant unqualified persons, including MFs, such rights in relation to particular proceedings.
  • While the court should be slow to grant any application under s.27 or s.28 of the Act from a MF, it should be prepared to do so for good reason bearing in mind the general objective set out in section 17(1) and the general principle set out in section 17(3) of the Act and all the circumstances of the case. Such circumstances are likely to vary greatly: see paragraphs 40-42 of the judgment of Munby J. in Re N (A child) (McKenzie Friend: Rights of Audience)[2008]EWHC 2042(Fam).
  • If the litigant in person wishes the MF to be granted a right of audience or the right to conduct the litigation, an application must be made at the start of the hearing.

I’m not sure that the amended version has yet been published but I posted the link to the April 2008 version here and the section pasted above is the only part to have changed.

between two stools

Legal aid is all well and good if you can get it but for many people legal expenses have to be met from elsewhere…If the world were divided into those who can’t afford to pay for representation and those who can’t and if everyone who fell into the former category got legal aid – it would all be straightforward.

But it doesn’t quite work that way. There are many people who earn too much for legal aid but who nonetheless simply cannot afford representation. Not everyone has bottomless pockets. So what to do?

1 Represent yourself – just because its a court doesn’t mean you HAVE to have a lawyer, although you may prefer it – consider whether you really need one.

Go Pro Bono – try the Bar Pro Bono Unit or see if your solicitor can persuade a barrister they know to do it for free just this once (it does happen occasionally).

3 The Piecemeal approach – pay for a little bit of legal advice even if you can’t afford representation. If you have a limited budget discuss with your solicitor how you can best spend it. Once a solicitor goes on the court record costs are incurred just by them keeping the case ticking over (responding to correspondence on your behalf etc). Or do it the other way around and save your beans for a barrister on the big day. (Neither solution is ideal but we’re talking about least worst options here.)

4 Beg Borrow or Steal (well, don’t steal) – increasing numbers of funding vehicles are out there – credit, policies etc. Ask your bank, ask your mum. Ask your solicitor.

5 Mckenzie friend – if you can’t get a lawyer get some support. See my previous posts here and here.

6 Take it outside – think hard about whether or not you NEED to litigate. Can you sort it out between yourselves? Would mediation or collaborative law be cheaper? Take a deep breath and REALLY consider – would it be cheaper to cut a deal now?

7 Research – google it, search the blogs, join internet groups or fora, sift through the websites of campaigning organisations and support groups. There is a lot of good information there about the law and the procedure in court – but be careful. It is not all accurate or unbiased so research thoroughly. Start with the blogroll on the right hand side of this page.