Home > The Court Process > Using a Barrister in Family Cases

Using a Barrister in Family Cases

By: Lorna Elliott LLB (hons), Barrister - Updated: 15 Jan 2017 |
 
Barrister Solicitor Family Court Client

Some solicitors undertake family cases themselves, whereas in other cases you might be represented by a barrister. Although in recent years the two professions have merged to some extent, and very recent changes have now given barristers the right to conduct a lot more by way of legal services than ever before, there are slightly different ethical considerations to be borne in mind between the two types of lawyers.

Differences Between Barrister and Solicitor

A solicitor’s duty is entirely to his or her client. That means that they are under a duty to act in your best interests at all times and cannot do anything likely to damage your interests. Barristers’ ethical duties are slightly different. Barristers have an equal duty to their clients and also to the court. What this means is that a barrister may not be able to act for you if you tell them, for example, that you want them to lie in court on your behalf. If this were to happen, in most instances your barrister would be ‘professionally embarrassed’ and would not be able to represent you.

A Barrister’s Expertise

Barristers are specialist court advocates who are specifically trained in relation to litigation and court scenarios. They have more formal advocacy training than solicitors and have higher ‘rights of audience’ than solicitors. This means that they are entitled to argue a case in any court in the land, including the Court of Appeal and Supreme Court. Unless a solicitor has obtained ‘higher rights’, he or she cannot appear in these courts (in which case their title would be ‘Solicitor Advocate.’) Barristers tend to specialise in a specific area of law, which means that a family law barrister is likely to have undertaken many cases in the Family Court before and will have expert knowledge on the particular case law that pertains to your case.

How Your Barrister is Instructed

While you may shop around for the right solicitor to represent you in your family law case, a barrister has no such choice in his or her clients. Barristers are governed by what is called the ‘cab rank rule’, in that as long as they are sufficiently experienced to do the case and are not already busy, they have to take the case. The exception to this is when a barrister is ‘professionally embarrassed’, such as in the above example, or in some instances if they are asked to represent someone for whom they have previously acted against.

What Your Barrister Wears in the Family Court

In the family court, barristers rarely wear a wig and gown. Most of the time your barrister will dress in the same way as a solicitor – in a dark suit and shirt. The exception to this in the family court is if someone has breached an injunction and the court has indicated that they may send them to prison, in which case wigs and gowns are required.

What to Do if You’re Unhappy With Your Barrister?

If you don’t like your barrister, or aren’t confident in the way they are representing you, it is possible to sack them. Through a final hearing may be a questionable time to do it, but if you are genuinely unhappy you should speak to your solicitor about getting a different barrister to represent you. If you are only unhappy with the way your case was dealt with afterwards, you can make a complaint to the Bar Standards Board (for barristers) or to the Solicitors Regulation Authority (for solicitors). That said, the vast majority of barristers are excellent advocates and work very hard on behalf of their clients, whether you are legally aided or privately paying. Remember, people tend to become barristers because they love to win!

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Lovingdad - Your Question:
Hi there,Just hoping for a bit of advice.I am in court with my ex this month over a few issues. Whilst she confirmed in her C100 application form she is happy with current arrangements (i was in process of applying for more time), her comments to cafcass and now in her statement to the court is that she is now longer happy and wishes the child to be returned to her the evening before - I have an older daughter from previous marrriage and both girls (2 and 9) get on like a house on fire. The current arrangement has been in place since I had to move in October 2015.She also wants to add her surname to make double barrelled but this was never an issue before but when she left me 6 months after the birth we registered together, its now a big issue. Her name would go from 26 to 32 characters.She also now wants our daughter to be christened as a catholic, not CofE. She is a non-practicing catholic and I am CofE. The compromise I am putting forward is that given the dissagreement, I believe our daughter should just decide a path a wishes to take when she is older.A blatant lie she has put in her statement is that I forced her out of the family home and she had to to go back from the corner to her parents.The truth is that we rented a property from her father, I had an agreement to pay rent. She left saying she needed a months break, never came back. She is clearly trying to paint a bad picture of me but this is a blatant lie and surely this needs to be addressed with the solicitors on the day - its made me so angry and upset that she feels she needs to lie like this (history of lying) in a court to hope the judge favours her.Would appreciate any advice on these issues.Thank you

Our Response:
If you have had consistent access to your daughter and her sibling simultaneously, then it is likely the court will continue this level of access unless your ex can give a good reason/prove why it shouldn't. However, regarding the other issues it is impossible to predict what a court may decide. If your child's name differs from her mothers and the mother wants a level of uniformity in the family, then the court will consider this. Regarding your other comments, much depends upon how Cafcass view it, if they get involved, please see link here .
SeparatedDads - 16-Jan-17 @ 11:14 AM
Hi there, Just hoping for a bit of advice. I am in court with my ex this month over a few issues. Whilst she confirmed in her C100 application form she is happy with current arrangements (i was in process of applying for more time), her comments to cafcass and now in her statement to the court is that she is now longer happy and wishes the child to be returned to her the evening before - i have an older daughter from previous marrriage and both girls (2 and 9) get on like a house on fire. The current arrangement has been in place since i had to move in October 2015. She also wants to add her surname to make double barrelled but this was never an issue before but when she left me 6 months after the birth we registered together, its now a big issue. Her name would go from 26 to 32 characters. She also now wants our daughter to be christened as a catholic, not CofE. She is a non-practicing catholic and i am CofE. The compromise i am putting forward is that given the dissagreement, i believe our daughter should just decide a path a wishes to take when she is older. A blatant lie she has put in her statement is that i forced her out of the family home and she had to to go back from the corner to her parents. The truth is that we rented a property from her father, i had an agreement to pay rent. She left saying she needed a months break, never came back. She is clearly trying to paint a bad picture of me but this is a blatant lie and surely this needs to be addressed with the solicitors on the day - its made me so angry and upset that she feels she needs to lie like this (history of lying) in a court to hope the judge favours her. Would appreciate any advice on these issues. Thank you
Lovingdad - 15-Jan-17 @ 8:09 AM
Rob - Your Question:
Can I just say that the site is called "Seperated Dads" Might I suggest that if you are female or looking for female support that you check other websites inclined towards you. The vast majority of issues that us men are facing is due to female behaviour and bias towarsd us, even when the mother is deemed as a completley inappropriate person, rant over!!

Our Response:
Although we are called Separated Dads, we do not see ourselves as wholly 'exclusive'. Many mothers visit the site as they are affected by the same issues as fathers and we will still attempt to help and advise where we can.
SeparatedDads - 20-Dec-16 @ 12:40 PM
Can i just say that the site iscalled "Seperated Dads" Might i suggest that if you are female or looking for female support that you check other websites inclined towards you. The vast majority of issues that us men are facing is due to female behaviour and bias towarsd us, even when the mother is deemed as a completley inappropriate person, rant over!!
Rob - 20-Dec-16 @ 2:56 AM
Asking for my best friend. She is going to court a week on Friday in order to see her daughter (ex is not a nice man and does not have full custody or anything and my friend has custody of a child from previous relationship). She received a letter from her exs solicitor stating that their client believes she is neglectful etc and a bad mother has got in touch with social services etc (not true) and is actually wanting custody of the child from previous relationship that is no relation to him. They split up years ago (friend is married with a 1 year old boy as well as the other child). My friend will just be representingherself and is very worried. Any advice I can pass on to her would be great
bigsuze - 15-Dec-16 @ 4:22 PM
My wife was suffering frm post natal depression and she had long history of severe deppresion and voilence by her father n brother and she never agreed on treatment and refused to seek help.2 months after my daughter's birth we started having intense argument everyday which she used to start.she accused me of domestic voilence three times and got me arrested once she also gave false details of mine.later she said she was jst tryin to scare me n didnt want to lose me thats why she gave wrong details to police.i told everything to detective in my interview and they never charged me.its been 7 months nw my wife is living in a refuge and social services is not allowing me to see my daughter.my solicitor told me i hv to wait until court and its her 2nd birthday next month.she didnt even allow me on her first birthday.its killing me i dnt knw what to do.i even tried goin through mediator bt social services refused.
Adi - 22-Oct-16 @ 1:42 AM
Melanie - Your Question:
Sorry to post here. Im a female looking for advice off men. I have 2 children to a previous very long term partner which ended but custody is shared easy as with him having access whenever he wants to the kids and lots of phone communication. if we lived in the same city its probably be 50-50. But Im now pregnant to another man I dated for 6 months by accident and he is bullying me for full week on full week off of a newborns custody. Now my offer to him was that because I want to breastfeed and think stability is so important for a newborn in its first year, that he can visit as much as he wants during the week and welcome to stay on weekends and some ill stay in his spare room to get the baby used to his house without me for when its a little older. And then after a year he can start doing overnights. But he is being aggressive and attacking saying its horrible, telling lies about me and only that he will do anything to get his way and for us to miss out on equal time. Him behaving like that is scaring me and im afraid he'll end up missing lots of his childs first year of life behaving that way. Id never rob my child of a strong relationship with her dad even with how scared I am of him. But am I being unfair and wrong in my offer? He works full time long hours and the baby would be with a carer 80% of his week. Im sorry. I just want to do the right thing without screwing her up in her first precious year of life so I would really appreciate and respect a man who isnt emotionally involveds opinion. Thank you for any feedback :)

Our Response:
As the mother you will have automatic parental responsibility on the birth of your child. Your ex will have PR if you register his name on the birth certificate and then he will have some rights,but not automatic rights to access. If you can't agree with your ex regarding contact and access, but you wish the father to play a part in in your child's life, then Mediation may be the way forward. Please see link: Mediation: What is it and is it For Me? here. This should take the direct pressure off you and you will be able to come to an agreement that hopefully suits you both. If your ex is not satisfied with this, then he will have the option to take the matter to court. However, this does not mean your ex will get his way as the court will always decides what it thinks is in the best interests of your child. It seems to me that you are being reasonable with the access arrangements you are offering, you now just need to try and agree between yourselves. At the same time, having a child is an emotional time for a man and they can often feel powerless if the relationship between you is in the past, at the same time you should not let yourself be bullied by your ex. Rational talks and mutual decisions are the best for you both as parents and of course for your child.
SeparatedDads - 24-May-16 @ 11:14 AM
Sorry to post here. Im a female looking for advice off men. I have 2 children to a previous very long term partner which ended but custody is shared easy as with him having access whenever he wants to the kids and lots of phone communication.. if we lived in the same city its probably be 50-50. But Im now pregnant to another man i dated for 6 months by accident and he is bullying me for full week on full week off of a newborns custody. Now my offer to him was that because i want to breastfeed and think stability is so important for a newborn in its first year, that he can visit as much as he wants during the week and welcome to stay on weekends and some ill stay in his spare room to get the baby used to his house without me for when its a little older. And then after a year he can start doing overnights. But he is being aggressive and attacking saying its horrible, telling lies about me and only that he will do anything to get his way and for us to miss out on equal time.Him behaving like that is scaring me and im afraid he'll end up missing lots of his childs first year of life behaving that way. Id never rob my child of a strong relationship with her dad even with how scared I am of him. But am I being unfair and wrong in my offer? He works full time long hours and the baby would be with a carer 80% of his week. Im sorry. I just want to do the right thing without screwing her up in her first precious year of life so I would really appreciate and respect a man who isnt emotionally involveds opinion. Thank you for any feedback :)
Melanie - 23-May-16 @ 11:31 AM
DaddyO82 - Your Question:
Hi, I go to court in a month against my ex for my daughter and getting all the general things in order as mediation didn't work. I have a solicitor and have been informed she is getting a barrister and has lied and changed wordings of things to suit her in her affidavit. What happens when the lies are proven to be lies and should I be looking for a barrister too ? I am quite confident in my solicitor though.

Our Response:
As long as you are confident in your solicitor and your solicitor obviously knows your background case well, then there is no reason to change and your solicitor will advise if he/she thinks it necessary. I can't predict what will happen in court, or what will happen if the lies are proven, it really is a case of what the Cafcass Report concludes and what the judge's opinion is on the day.
SeparatedDads - 28-Apr-16 @ 11:38 AM
Hi, I go to court in a month against my ex for my daughter and getting all the general things in order as mediation didn't work. I have a solicitor and have been informed she is getting a barrister and has lied and changed wordings of things to suit her in her affidavit. What happens when the lies are proven to be lies and should I be looking for a barrister too ? I am quite confident in my solicitor though.
DaddyO82 - 27-Apr-16 @ 1:17 PM
Serj - Your Question:
HiI am looking for a good and nott expensive and outspoken barrister for 22nd of Feb and 5 days starting from 7th of March.Basically my bther is geting divorce but his wife dragged me and my older brother too for her financial gains.

Our Response:
You would have to locate a barrister via the link here.
SeparatedDads - 12-Feb-16 @ 12:08 PM
Hi I am looking for a good and nott expensive and outspoken barrister for 22nd of Feb and 5 days starting from 7th of March. Basically my bther is geting divorce but his wife dragged me and my older brother too for her financial gains.
Serj - 11-Feb-16 @ 5:52 PM
Desperate dad- Your Question:
Hi I'm a father of an 18 month old son. I split with his mum last May and we were unmarried. I only knew his mum for a short time before she fell pregnant. without going into every incidence sine our split I have found her to continuously neglect my son. I feel she is not capable of looking after him. I have him more than his mum and I generally have him at least 4 days a week. Over xmas I've had him continuously for 2 weeks in which time she never contacted me to see him. She is reluctant to give me custody as she claims benefits and works part time. As sad as it sounds my son is just a meal ticket and nothing else for her. I have several claims of neglect which have been reported but no action was taken towards her. Basically I want full custody of my son but really lack the legal knowledge. Have searched various websites for advice but it seems the court always favour the mother. I also know I will have to pay for advice so want to make sure my cash is being spent wisely and wonder whether I should instruct a barrister? Please can anyone offer any advice or recommend a lawyer that had been used. I live in the Cheshire/Manchester area. thanks

Our Response:
I am sorry to hear this. You have a few options; first in a family-based arrangement you could try to have your son as much as you can, this way it will benefit your son and help prevent the neglect. Mediation may be an option, please see link: Mediation: What is it and is it For Me? here. This will allow you to sort out an agreement between you both. The courts will always recommend sorting your issues out via mediation before allowing you apply to the courts. If you take the matter to court for residency, then you will have to be prepared for a court case which can be very stressful and costly and it may or may not produce the result you desire. You would also have to prove your ex's neglect of your child, as it is rare that the courts will move a child from a resident parent to a non-resident parent unless neccesary. Employing a barrister and taking it through court will cost and court cases can be lengthy. But it is fundamentally up to you how you approach it, as I'm afraid there is no rule book here and we can only give you the options. I hope this helps.
SeparatedDads - 7-Jan-16 @ 12:09 PM
Hi I'm a father of an 18 month old son. I split with his mum last May and we were unmarried. I only knew his mum for a short time before she fell pregnant. without going into every incidence sine our split I have found her to continuously neglect my son. I feel she is not capable of looking after him. I have him more than his mum and I generally have him at least 4 days a week. Over xmas I've had him continuously for 2 weeks in which time she never contacted me to see him. She is reluctant to give me custody as she claims benefits and works part time. As sad as it sounds my son is just a meal ticket and nothing else for her. I have several claims of neglect which have been reported but no action was taken towards her. Basically I want full custody of my son but really lack the legal knowledge. Have searched various websites for advice but it seems the court always favour the mother. I also know I will have to pay for advice so want to make sure my cash is being spent wisely and wonder whether I should instruct a barrister? Please can anyone offer any advice or recommend a lawyer that had been used. I live in the Cheshire/Manchester area. thanks
Desperate dad - 6-Jan-16 @ 4:45 PM
jamieT - Your Question:
I need some advice basically I've been to court twice in 6yrs fighting for my son to live with me as it's all he goes on about and wants. His mum took him 120miles from where he grew up etc and since then I've fought for what he wants but never got anywhere. But I started fighting a 3rd time the judge basically ordered that my son have a guardian and that he do a full report. He saw my son in Poole with me my fiancee and her son. He also was seen in Hastings with his mum. And also at school with neither of us about. The guardian done the full report and has stated that he believes it's what my son wants and fully backs my son living with me.We went back to court buy the mum didn't agree and then done a position statement slating cafcass also slating myself. When my report not once did I slate her.We have a 1day trial in January but I'm not sure if I should borrow money to get a barrister as I'm not sure how much a judge takes cafcass full recommendation into consideration. At present neither myself or ex wife have solicitors. Our son is 11 but a very bright 11 yr old

Our Response:
It may seem like your ex might have the upper hand if she decides to play the accusatory game. However, the courts do not really respond to slanging matches, therefore whether your ex's report will hold water is debatable. In your favour; the courts generally do adhere to the Cafcass report and as you are no doubt aware, will always rule for what is in the best interests of your child. On one hand having a barrister may make the playing field uneven and weight could be given to your ex to compensate for her having to self-litigate. On the other hand it may help your case. Therefore, this is very difficult to advise upon and you can only go with what approach you yourself think right. I have included the Bar Council guidance to representing yourself in court, which gives very good advice should you decide to continue in the self-litigation route, please see link here. I hope this helps.
SeparatedDads - 21-Dec-15 @ 12:20 PM
I need some advice basically I've been to court twice in 6yrs fighting for my son to live with me as it's all he goes on about and wants. His mum took him 120miles from where he grew up etc and since then I've fought for what he wants but never got anywhere. But I started fighting a 3rd time the judge basically ordered that my son have a guardian and that he do a full report. He saw my son in Poole with me my fiancee and her son. He also was seen in Hastings with his mum. And also at school with neither of us about. The guardian done the full report and has stated that he believes it's what my son wants and fully backs my son living with me. We went back to court buy the mum didn't agree and then done a position statement slating cafcass also slating myself. When my report not once did I slate her. We have a 1day trial in January but I'm not sure if I should borrow money to get a barrister as I'm not sure how much a judge takes cafcass full recommendation into consideration. At present neither myself or ex wife have solicitors. Our son is 11 but a very bright 11 yr old
jamieT - 18-Dec-15 @ 10:12 PM
My neice is almost 5 years old. Her mother my brothers ex decided she wanted a new boyfriend around 12 months ago and wanted my brother out the picture she has been to police saying he is abusive and has been violent to her had a non molestation order a d stopped my brother havibg any contact with his daughter it has gone to court CAFCASS were involved made there report the mother is amazing turned her life around and basically made out my brother shouldn't have contact at all. He is devastates he was an amazing father he loves that little girl wouldn't harm a hair on her head. He wants to fight this in court but wants to know if he should go with a solicitor or a barrister can people give me some advice please??
Lm123 - 15-Oct-15 @ 4:23 PM
Too long a story to go into but in a nut shell my ex lied during the settlement to get me to give her all the equity in the property on the basis she needed a permanent London home for my 6 year old daughter whom I see every other day. Divorce settled only a month ago she has now put the property on the market and is planning to re locate to Northern Ireland with a massive settlement and a huge monthly maintence payment. She is going to be a very weathly woman. She is now on holiday for 2 weeks to Northern Ireland and I don't expect her to return. She will likely get my daughter enrolled in a school and although I have been advised that i could launch proceedings it is likely to be heard in a local court in NI. I have a solicitor but unhappy with the advice I have been given and therefore want to try a qc who has experience in these types of cases. If she stays in NI I doubt i can insist her return?? but baring in mind I am London based I will need to challenge for regular visitations, ensuring I do not foot the full financial burden of paying for flights every other week and potentially re opening the divorce financials as well has a re negotiation of maintence?? baring in mind I was mis lead thru the negotiations. If anyone knows of a great qc that has a proven track record based in London it would be really helpful if I you could pass there details.....my ex went on a supposed 2 week holiday to NI yesterday and it was a very emotional day thinking it may be the last time I see her under the circumstances we both have been used to for the past 6 years.
Deceived Dad - 16-Aug-15 @ 8:21 PM
for direction hearing regarding a cotact order to see my child which i previously had a court order against me not to see my child for 5 years do i need a barrister as cafcass are involved n this people have no clue whatsoever whilst there action is only hearsay from both parties my case at holborn on 15th sept 2014 ie monday or shall i approach citzen advice there
zoo - 10-Sep-14 @ 11:30 PM
I've just come across this article and thought it would be helpful to make clear that it does not accurately represent the differences and similarities between solicitors and the bar. It is wrong to say that a "solicitors duty is entirely to his client". It is not. A solicitor is an officer of the court. BOTH solicitors and barristers have a duty to the court and the interests of justice AND to their client - solicitors must act in the best interests of their client, whilst barristers must "fearlessly defend" them, but this is a difference in terminology more than substance. BOTH are prohibited from misleading the court or from bringing the legal profession into disrepute and must not act contrary to the interests of justice - this is why a barrister must withdraw rather than lie, and a solicitor is in a similar position. To suggest that a solicitor may lie on your behalf whereas a barrister cannot is completely wrong. Neither should do so if adhering to their professional code. On a more minor point regarding complaints - in the first instance a complaint about a barrister should usually be made to a barrister's chambers.
familoo - 6-Apr-14 @ 9:31 PM
Im due in court in August It's a long story but the ex wants contact with my child he has a assault charge that was made on Me a few years ago due to the separation and I have injunction orders in place . But the injunction doesn't stop contact with his child.. Every dad should know there child But I am Represening myself in court and caffcass has been asking to speak to me I have refused at this point to Discuss anything with Anyone As Cafcass Nor any solictor in the Land knows my Child Like I Do ..bein a single mum for 4years straight. However I am taking a Barriser .. As a solictor is a complete waste of time they long out the process and a barriser has more power to the courts .. Especially if there is any criminal story involved within giving The seprated "dad" contact to your child. Get a Barriser Not a solictor..
TwizzyToo - 9-Jul-13 @ 10:59 AM
Does anyone know if I am entitled to a barrister at the final hearing of family court if Im representing myself?
Gio - 11-Jan-13 @ 9:37 AM
Its also worth bearing in mind that barristers don't like to lose, so if they don't feel you have a strong case they will settle rather than string out a hopeless case the way solicitors do. My ex must have spent thousands on her solicitor while I represented myself, with the help of a McKenzie friend who was also a qualified barrister. When it eventually got to a Final Hearing she instructed a barrister and at the first break he asked me if there was any possibility to reach agreement? He then told her not to be so unreasonable and drafted the shared residence order I had been seeking all along. It would have been comedy if it wasnt for the damage two years of court has done to my kids. So I've a lot of time for barristers but solicitors are blood sucking scumbags!
SadDad - 12-Sep-12 @ 9:13 PM
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