Handling Barristers
"Some nights, the wolf inside of me shrinks to nothing, she bares her teeth and runs away. The dragon in my chest rejects me, she's so tired of being slain. There are nights where the lioness cowers, she says she can't fight another day..."
"What about the phoenix?"
"She sits with me in the darkness. She whispers, 'We'll rise. Just you wait"
-The Butterfly Effect, Sian Wilmot
Before the Hearing
Before a hearing, barristers would normally meet each other to discuss their client's positions and try to come to some agreements. If you are self representing, your ex partner's barrister or their 'counsel' will ask if you want to do the same.
You do not have to have a private pre-meeting with opposing counsel before the hearing, these can sometimes be an hour before the hearing which can increase pressure and stress.
You only need to agree to discussions you are comfortable with, ideally in a safe, neutral space in the court building and with your McKenzie Friend if you have one. You will have to get the opposing counsel's permission for a McKenzie Friend to attend a pre hearing meeting.
You are not obliged to agree to anything before the judge hears the matter and you can ask your ex partners counsel to send you any proposed agreements or documents well in advance to ensure you are not pressured into making decisions you don't want to. You can say, “I need time to read this and seek advice.”
What do I do if I'm uncomfortable?
Know your rights and change perceptions. Even without legal training you have the right to be treated with dignity and respect. The court process is designed to be fair and equitable to enable access to justice for all.
By being calm and prepared, you can challenge any assumptions your ex partner's legal counsel my have about you. Remember that legal professionals are contracted to represent their client's interests, they are not there to help you. This does not mean they can use pressure tactics or underhand means to get you to do what they want.
You can empower yourself by referencing key legal principles and cases in your position statement to show you are informed in your position statement. See our guide for further info.
Learn techniques to regulate your nervous system from our 'Court Wellbeing Tools'
Assert your narrative with confidence and clarity with our 'Court Plan'
At the First Hearing Dispute Resolution Appointment (FHDRA) or Directions Hearing
You are not under any legal obligation to agree to any proposals presented by your ex partner or their counsel before the hearing.
Remember that only judges and magistrates finally decide on what goes into an order, not barristers.
You can agree on child arrangements and ask the judge to put them into the order, but if you want the judge to look at evidence and arguments before making a decision on a particular issue, you can wait for the judge to do that.
If you need domestic abuse protections given by The Domestic Abuse Act 2021, your ex partner's barrister must be respectful of this, if they are not, you can remind them of the protections given to you. They may try and rush you for a decision on issues and you can say to them you need time to consider or seek advice.
You have the right to ask them just to communicate in writing, if you feel intimidated, tell the judge.
You ex partner's barrister is employed to represent their interests and get the best result for your ex partner. They cannot deliberately mislead you about the law or your rights, you do not have to answer irrelevant questions but you will have to have some form of communication with them in order to agree on when you exchange position statements before the hearing, the documents to go in the bundle and writing the final order.
Practical techniques for Hearings
Court can be overwhelming. But, challenging barristers or other counsel as a LiP doesn’t require confrontation, it requires preparation. You can reclaim your agency in a space that can feel disempowering by knowing the law, speaking calmly, and focusing on your child's and your own safety.
Before the first hearing you must agree on the bundle of documents to be presented to court. There are mandatory documents to be submitted, you may disagree on other documents to be submitted. See our guide on how to prepare a bundle.
Use our 'Court Plan' to help you make your
key points for your case. You can add sections for quotes from laws, reports, or cases relevant to your hearing.
This hearing is about procedural directions, the judge will look at the position statements and bundle then ask for further evidence to be disclosed to the court, not decide the whole case.
If opposing counsel ask for documents that aren’t relevant, raise this with the judge, as only a judge can order you to obtain or share certain evidence.
The court will also set a timetable for the next stage of the case, ask the court for more time if needed to prepare safely.
Read about other litigants experiences in court:
At a Fact-Finding Hearing
If domestic abuse is present in your case as outlined by the Domestic Abuse Act 2021 (s.65), you cannot be cross-examined directly by your abuser. If your ex partner is also self representing, the court must arrange alternative questioning via the judge, or a qualified legal representative appointed by the court.
However, if your ex partner is represented by a barrister or solicitor, they can cross examine you, as long as the questioning is carried out respectfully, fairly and under the rules outlined by the Practice Directions (3AA + 3AB).
The judge has a duty to stop questioning if it is irrelevant, aggressive or re-traumatising. Remember you can also ask the judge to stop the questioning if you need a break.
You have the right to stay within your boundaries, and focus on the issues at hand, if the opposing counsel asks anything you think is irrelevant, ask the judge whether the question is relevant or not.
Opposing counsel cannot mock you, belittle you or pressure you into accepting facts that you do not agree with.
Use our 'Court Plan' to prepare for questions you may be asked and questions you want to ask your ex partner.
The court will also send you a form with your hearing notice if you need protections under the Domestic Abuse Act 2021. You have the right to request as many protections as you need, and to make the hearing safe and as comfortable as possible for you.
How to approach a Fact Finding Hearing
Fact Finding Hearings are stressful because they are held to determine on the 'balance of probabilities' whether allegations of harm are true. They involve presenting detailed evidence, cross examination and confrontation of your ex partner.
There are Practice Directions and Family Procedure Rules that outline how Fact Finding Hearings should be conducted, particularly what questions can be asked:
Family Procedure Rules 2010, Part 22
Evidence and cross-examination.
Family Procedure Rules 2010, Part 3A
'Vulnerable persons: participation in proceedings and giving evidence.'
You will get the opportunity to question your ex-partner, questions must be relevant to the allegations e.g. domestic abuse incidents, patterns of control, impact on your child.
Help the judge clarify what happened, when, and how it affected you or the children.
For example
“On [date], did you send this message? Can you explain its meaning?”
“Were you present when the police attended our home on [date]?”
“Why did our child’s school report [specific behaviour] at that time?”
Questions cannot be abusive or argumentative, focus on sexual history unless it's strictly relevant or
be designed simply to intimidate your ex partner.
Use our 'Court Plan' to help you keep calm, focused and organised.
At a Final Hearing
Your ex partner's counsel will offer a Pre Hearing Discussion to try and come to agreements before the hearing. If you need a McKenzie Friend to attend with you, you will need to get the barrister's permission. You also have the right to refuse a Pre Hearing Discussion and this should not prejudice your case.
You do not have to agree to any last minute proposals from the opposing counsel unless you fully understand them and agree.
In the hearing, opposing counsel will summarise your ex partner's case, but they cannot misrepresent your evidence without you having the opportunity to correct it. You should be given equal time to speak to the judge and the barrister should not speak over you or interrupt you.
Take notes in the hearing, especially on what is agreed. If you are unsure or you want to make sure you have the judges exact words, you can ask the judge to read the key points of the order before the end of the hearing, because you will be writing up the court order with your ex-partner's counsel before it's submitted to court.
The judge's decisions in this hearing are final. You do have the option to appeal, but this is a separate process. See our Appeals page for more information.
How to approach a Final Hearing
Make notes in the hearing, or ask your McKenzie Friend to take notes, especially what is agreed as this will be written up into the final order.
In your notes you can create two columns:
One for what’s said by the judge/ opposing counsel
One for your responses/questions.
Try to keep your court notes emotion free and mark ‘DA’ or ‘child harm’, for example, beside key points made by your ex partner to flag issues needing reinforcement.
Do not feel pressured to have conversations with opposing counsel before the hearing.
If you're unsure about anything, you can ask the judge, they have a duty to support you.
If you feel unsafe or need protections put in place due to domestic abuse, ensure you ask these from the court.
Your McKenzie Friend is there to support you, they cannot speak for you in court however, but they can talk quietly to you in court and take notes for you. Remember you must ask the court's permission for a McKenzie Friend to attend.
See our 'McKenzie Friends' section for more information.
After the Final Hearing
When you are writing up the final court order, be aware that some opposing counsel will try to slip in changes during the drafting that were not agreed in court. This is why it is important that you take notes.
If you are unsure about anything that was agreed or stated in the hearing, you can email the judge for clarification if you and the opposing counsel disagree on what was said.
You have the right to see the draft order before it is sent to the judge before sealing, compare the draft against the judge's actual words.
Do not sign or approve any version of the order that you do not agree with, especially if the wording does not reflect your notes.
If there are any extra terms, deadlines, restrictions or arragements that were never discussed in the hearing, and the opposing counsel is refusing to change it, email the judge.
Myths about Barristers
Myth 1
Barristers are more powerful than I am in court
Although barristers have legal training, you as a litigant in person are due the same respect and opportunity to present your case to court. Judges are trained to listen to you and treat your case, evidence and story in the exact same way as your ex partner.
Myth 2
The judge will always believe the barrister over me
Judges must base their decisions on evidence, facts and the welfare of your child(ren), not who is legally represented.
Myth 3
I must answer every question a barrister asks me
Questions need to be relevant to the case. The judge can step in if you feel pressured, you will need to advocate for yourself and say you're feeling pressured or that a question is not relevant. Similarly, they cannot intimidate you into answering their questions or speak over you.
Myths about Barristers
Myth 4
I can’t challenge something a barrister says
You have the right to correct inaccuracies or object to what opposing counsel say, you must do so politely an respectfully. The judge will decide what is fair to consider overall. You can refer to your 'Court Plan' and have key facts and evidence in your case to refer to.
Myth 5
If I don’t have a barrister, I’ll automatically lose
The court knows that many people self represent and there are rules in place to ensure you receive a fair process.
Myth 6
I can’t bring any notes or documents to help me speak
Use our 'Court Plan' to help you write up key points and evidence, you can refer to it as much or as little as you need. The court should ensure you have breaks when needed and you can take as much time as you want to respond. You do not need to engage in the 'court drama' and pressure of a hearing.
Next Steps
Going to court without having representation can feel extremely overwhelming, it is okay to ask for and receive help, in whatever capacity you can afford.
1
I'm not sure about representing myself
Some barristers offer direct access for one-off help for a hearing, some solicitors offer 'unbundled services' where you only pay for specific support.
You can use our flowchart in the 'Do I Need a Lawyer' section to help decide what next steps you want to take in your court journey or contact one of our specialist services if you need support with domestic abuse, LGBTQIA+ or access requirements.
2
I'm ready to prepare for my first hearing
You can refer to any section of our website as many times as you need to support you in your court journey. If you're ready, and you have a hearing date, you need to prepare your position statement and bundle.
If you are self representing entirely, you will need to prepare these documents on your own. If you are using 'Direct Access' or 'Unbundled Services' your legal representative will still need you to prepare these documents.
3
I can represent myself, but I want support in court
You don't have to face court alone. If you don't have a friend to support you then there are services that can provide McKenzie Friends.
Remember that you must apply to the court for a McKenzie Friend to be present, the judge has to agree that you can have them in your hearings. If the court says no, you can still have a friend or family member come to the court with you on the day of the hearing, but they will not be allowed into the courtroom or meetings.