Entering a new year – no, decade – I resolved, along with the usual aspirations of getting back to the gym, doing dry January, moaning less about Manchester United/my commute and achieving better work/life balance, to turn my hand to (occasional only, honestly) blogging.
As I pondered what topic my first, momentous (ahem) blog would cover, two things happened. First, I was contacted by BBC Radio London about doing an interview on civil partnerships for all, which promptly led to my first post. Second, I received an email from someone who works with separating couples. A non-lawyer, he had written a piece he was seeking to have commissioned and invited comments.
As I read it, I found myself in a state of indignant irritation. The premise being that January is a month when many people research “divorce” online, the bottom line of the article was that divorce and separation is a health and social issue that doesn’t belong in court; and that this is a public health crisis which can be addressed by investing in measures like better education and practical support for separating families. None of that especially controversial, as a viewpoint.
Are family lawyers the problem…?
What caused my hackles to rise (though I know from subsequent emails that he did not read his article/intend his article to read as I did) was the description of family lawyers which permeated the piece. Among other things, the charges levelled at us were that :
- We prey on parents when at their most vulnerable, our firms standing to make tens or even hundreds of thousands of pounds, effectively leaving the client writing a blank cheque;
- Mums and dads, turning to their friends for advice, are told to ‘lawyer up’ quickly because whoever acts first will have the upper hand; but in doing so, they are not given the support they need, instead invariably being directed into a destructive court battle by their solicitors;
- Family courts set the tone for all divorce and separation, as everything else is still described by family lawyers as “alternative”.
My cross response – probably, in the process, proving the author’s point about family lawyers, but feeling the need to defend our honour – was that all too often the picture painted of family lawyers is of grasping, money-grabbing charlatans who prey on the vulnerable and force them to write blank cheques with no upfront discussion of costs and who issue court proceedings without thought; whereas (a) we are rightly required to be transparent about costs and think about proportionality at every turn and (b) there is a fresh breed of family lawyer who triages each client, signposts to the right pathway and does not think of court as the ‘norm’. I pointed out the work that Resolution and others have done to persuade government, post-the legal aid cuts and in pursuit of the return of funding for initial legal advice and signposting, that family lawyers are part of the solution, not the problem, a message recently reinforced by Baroness Hale. I signed off, probably rather too tetchily, that all professionals working with separating couples should be rowing together collaboratively, not lobbing sideways grenades.
But having now reflected on that exchange, on the more combative family lawyers out there and on the many children cases of mine which ended up in court last year, I found myself wondering – is my description of family lawyers universally the case? Are we as children-focused in our approach as we could be? And how could we do more to reduce conflict in the work we do?
So here are some thoughts – non-exhaustive, non-Gospel – about changes family lawyers may consider implementing to make the 2020s better for families in crisis. Others’ thoughts (and even – disagreement) welcomed.
1. Get to know our networks & learn from those in them
One of the biggest shifts in our work in recent years is an acceptance by family lawyers that families in crisis have a range of needs, not all of them legal advice fodder. In the children work we do, one or both parents may need therapeutic support, whether to come to terms with the end of the relationship, to learn how best to co-parent post-separation or whatever. The children may wish to speak to someone about how they are coping with their parents’ separation and their hopes for the future. The parents may wish to discuss future arrangements with a mediator and if there are urgent issues which are not capable of quick resolution (for example disagreement over a child’s school), an arbitrator’s determination may be needed. We should embrace this range of needs on parental separation, accept our own limitations and build our networks accordingly, getting to know the range of experts in our area and having the right professionals on speed dial.
It is also right that we should look to those in our network from a therapeutic background to educate us in the dynamics of relationship breakdown. So many of the instructions we get come from a place of stress and extreme emotion; understanding that may lead us gently to challenge the instructions we are getting, to look for the unspoken pointers and to signpost to the right type of support. Expecting parents to take in legal advice and make decisions about their children when they are under water emotionally is short-sighted and bound to lead to conflict.
2. Educate ourselves in all pathways for clients (and don’t say ‘alternatives’ to court!)
It is true that too many family lawyers still talk about “ADR”, hold court out as being the ‘norm’ and don’t tell clients about all of the options, either because they feel there is a commercial imperative to litigate cases; because they don’t understand non-court based options so cannot describe them to clients; or for other reasons unknown. But for clients, we know that court is destructive and the option we should be recommending last.
By the same token, many – myself included – can go to the other end of the spectrum and demonise court, yet in certain cases it is the only option. Being as objective as I can be, my cases which ended up in court last year were where parents – in both cases mums, me acting for the dads – did not agree to overnight contact without any welfare concerns being present and mediation failed to move the dial; where there was suspected parental alienation and wholesale breach of orders by a mum; where my female client was faced with a range of repeated and oppressive, non-children focused applications by a dad; or binary issues such as leave to remove or disagreement over a child’s school. I have reflected carefully on every case and thought – could court have been avoided? In fact the better question is probably, are there therapeutic services to which I could have referred the clients which may have led to a different outcome? In every one of those cases, I have either sent the couple off for mediation or family therapy or have urged them to go but one or both have refused. Early parental education about the adverse impact on children of conflict, and/or of not having a relationship with both sides of their family in most cases, may have made one of the non-court based processes succeed and is a missing link.
As family lawyers we need to be able to describe all options to clients with confidence; not to treat them as standalone, siloed processes but as seamless, complementary pathways to resolution or determination; and listen carefully to what clients want, at all times being sensitive to budgetary, time and other constraints/priorities. A case referred to successful mediation is not a litigation lost; it is a happy client who is more likely to refer a friend as a client, and a mediator who will be waiting to recommend you next time they have a failed mediation. And a case which ends up in court is not a failure; the failure is taking to court the cases that could have been resolved in some other way.
3. Don’t encourage clients to treat MIAMs as a tick-box exercise
We know that MIAMs have not been successful in diverting more separating couples away from the family courts. One only has to look at the latest family court quarterly stats, published in December, to see that – a 5% increase in private law cases year on year being one of the headline statistics https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/852097/FCSQ_July_to_September_2019.pdf The fact that the MIAM continues to focus on mediation only, and is capable of being offered only by accredited mediators, is regrettable and something about which Resolution continues to campaign. Many judges’ cavalier attitudes towards DR (or which more below) are also unhelpful.
But too many family lawyers regard the MIAM as a tick-box exercise, anxious to issue Form C100 and get children proceedings underway. Sometimes, especially where a child is being deprived of any (meaningful) time with one parent, this may be for good reason; invariably, it is not. So the next time we send a client for a MIAM, rather than arming them with a completed application and thoughts of court as the solution, let’s send them with an open mind.
4. Campaign to change the family justice environment
Now, this is a tough one. We all know the ever-growing burdens on the family courts and we can’t expect quick fixes. But all the tools are there. Fundamentally, the Children Act 1989 is fit for purpose and does not need to be changed to achieve the right arrangements for children. What needs to change is the way in which the system works, a fact acknowledged in the interim proposals for reform of the private law system launched by Sir Andrew McFarlane in the summer and consulted on this autumn.
One obvious change is that gatekeepers should more robustly enforce the MIAMs requirement and judges should more routinely exercise their powers under Part 3 of the FPR to adjourn cases for non-court based dispute resolution. Too many cases which don’t need to be in court are clogging up the system and too many judges have said to me that they take the view that once a case is in their court, they should hold onto it. That is, with the greatest of respect, a flawed view as an imposed outcome is more likely to be resented and therefore not respected by one or both parents, making further court appearances an inevitability. The private law working group (in a raft of recommendations in a detailed, thoughtful report) identified the need for more robust enforcement of the MIAMs requirement; it is vital that even before any change is implemented we work with our local judiciary to encourage this. https://www.judiciary.uk/wp-content/uploads/2019/07/Private-Law-Working-Group-Review-of-the-CAP-June-2019.pdf
Arguably, in the harder cases which need court input, what needs to change is the way in which resources are deployed. It can’t be right, as in one of my cases recently, that a father being denied overnight staying contact with his children waits 11 weeks for a FHDRA (in turn after waiting weeks for the application to be processed). There needs to be early (within 2-4 weeks) triage in cases where there are no safeguarding concerns and an interim arrangement imposed (if necessary) so that the status quo imposed by one parent doesn’t become the norm and risk harming the children. This process may be assisted by there being a starting point blueprint for child arrangements, depending on the children’s ages and stages, which could then be departed from at a later hearing after evidence. And enforcement of final orders is vital. The court has a raft of powers available to it but my own experience is that judges are reticent to use them even in cases of obvious breach; I can understand that reticence where financial penalties or imprisonment are concerned, but less so with the non-financial penalties.
5. A Code for parents?
All members of Resolution subscribe to a Code of Practice which, among other things, requires them to reduce or manage any conflict or confrontation; support and encourage families to put the best interests of children first; guide clients through the available options; and use the Resolution Guides to Good Practice in their day to day work. At present there are 16 such Guides in existence and in the context of children cases, those on correspondence and communication are especially relevant https://resolution.org.uk/professional-development/knowledge-resources/?knowledge%5B%5D=17&sort_by_atoz=
But there are two obvious shortcomings. First, the most oft-made complaint to me when I was Resolution Chair was that many are concerned that the Code doesn’t have teeth. Of course, any Code requires people to call out bad behaviour – people need to live and breathe it and not stay quiet about those who don’t – and over the years Resolution has worked tirelessly to equip local regions to deal with offenders and to encourage members to call out persistent bad behaviour by reporting it to HQ through the complaints process. It would be foolish of me to pretend that there aren’t family lawyers who ratchet up the temperature and delight in litigation whatever the misery caused to families; but it is for us as a profession to manage that behaviour by calling it out and not referring children work to those individuals.
Second, getting client buy-in. Although we advertise ourselves as Resolution members and extol the virtues of the Code, how many of us have quickly been faced with clients saying, in the face of perceived unreasonable behaviour by the other parent or combative correspondence from their solicitor, “you need to be more aggressive, I feel like we’re always on the back foot, why are we always responding to their letters” etc etc. This is especially difficult when the other solicitor is not a Resolution member. I had one such case recently in which, between issue of the application and the FHDRA, the other solicitor wrote around 70 letters, many containing highly contentious statements about my client and (in effect) dictating contact arrangements. My client was apoplectic and kept asking me to respond robustly, considering me meek when I kept telling him that further correspondence wouldn’t move the case on, a judge wouldn’t read it and he needed to regard this as a long game and present at the first hearing as the reasonable parent (which he did, to his advantage). But from his perspective – how frustrating to be told to “play the long game” where it concerned seeing his children and to leave unanswered a range of allegations which he disputed and feared a judge would believe if no response was made.
Is the answer to require parents to sign up to their own Code? One which contains similar themes as the Resolution Code for its members, and which may be tailored to the individual case in the same way as clients crafting an anchor statement in a collaborative case, so that correspondence or actions which breach that Code can be called out by reference to the parents themselves, not just the lawyers. And how may we deal with unrepresented parents in all of this? Perhaps a Code to which they are signposted online and/or which the Court sends to them when one of them wishes to issue an application?
6. Consider how we work/charge for our work and be more innovative
An acknowledgement (as I must) – I work in an ivory tower, where my clients (generally speaking) can afford to have full service representation, though that does not stop them (rightly) from being concerned to understand the costs they will be charged and from having a moan about them from time to time. But quite often, I am approached by a parent who either has a limited budget for costs, where one’s knee jerk reaction can often be just to issue court proceedings so as to avoid the risk of duplication of costs; or those who cannot afford a lawyer at all.
In our plight to be our best selves, counter-balancing the need to make a living with a desire to “give something back”, it is right that we should look beyond the hourly rate and think about other ways of working so that our/other legal services are more accessible :
- For some parents, a fixed fee initial consultation is all they need to equip them with the information they need to go off and do it themselves, whether through a kitchen table discussion or mediation leading to a parenting plan, or in the more difficult case, representing themselves in court.
- Often in the cases where the parent, after that initial meeting, finds themselves needing to issue court proceedings, invariably we will agree a fixed/capped fee for the ad hoc work that my firm may do, e.g. drafting the application notice, checking over statements etc. Sometimes we come on the record very shortly before a hearing and come off very shortly afterwards so that the client’s resources are focused around the key chunks of activity; in other instances I signpost clients to a direct access barrister for a hearing.
- Somewhere on the spectrum between early resolution and court determination, I signpost to early neutral evaluation where parents may benefit from a steer to help them reach their own agreement.
- As a mediator I will fix a fee per session of mediation and for any drafting, and be quite directive, which many parents have found a useful and affordable way to get to agreement about parenting arrangements without court.
- I have also begun to discuss with children arbitrators the circumstances in which they will adjudicate a dispute between two unrepresented parents (or, in one recent case in which I sought to signpost a couple from my mediation table to an arbitrator, one represented and the other not).
- As I heard about when at the IACP conference in Chicago in October, it may be possible to pull together a team (say in a collaborative model, or a mediation which automatically transitions to collaborative if impasse is reached) who agree a fixed fee for the couple.
- Finally I have a good relationship with many firms who, being non-Central London based, can assist parents at a fraction of the cost and in appropriate cases will make that referral in a seamless way, picking up the phone to give some background so the client is not giving the same instructions (and being charged for doing so) twice.
There is innovation all around and we must embrace/build on it.
There is also the pro bono work which has become a feature of our practice for most of us, whether through work undertaken in the office, at a legal advice centre, at our local court or in some other way. A particular goal I have set myself for 2020 is to be more sophisticated about how I select the pro bono work I do. Increasingly, my focus is the children. If somebody contacts me in a state of distress because (as the non-resident parent) they are not seeing their children, or (as the primary carer) because their ex is being oppressive and the children are beginning to be affected, or because children are seemingly being harmed in some other way by the status quo, instinctively I want to do what I can to help. As a compass, I’m struggling to think of a better one.
7. Are there circumstances in which we should decline to take on/continue to act for a client?
This is a topic which always attracts a lot of comment when I raise it on Twitter. It is a regulatory minefield; generally speaking, one can only stop acting for a client with good reason and on reasonable notice. Some good tips and points to be aware of are in this article https://www.lawgazette.co.uk/practice/how-to-sack-a-client/5047782.article
As I have got older and more confident in challenging clients where I think they are acting out and not in the best interests of a child, I have been more ready to suggest to a client that perhaps I am not the right solicitor for them. Sometimes a parting of the ways comes right at the start, when I talk about how I work and say to them, bluntly, that if they want a Rottweiler I am not their woman. However, most parents start out with good intentions and wanting to resolve things amicably, so it is only further down the line that differences between a parent and their solicitor arise. I can think of one particular case in which I was acting for a mum who was so aggrieved with the dad that she would not share with him practical details like the type of nappy the child needed and kept telling me she wanted to move to a range of possible places, each clearly designed to make contact as difficult as possible rather than being motivated by the usual (genuine) reasons such as a new job or relationship. In the end our differences were just too great and there was a mutual parting of the ways when I said, yet again, that I was not comfortable to write the letter she wanted.
That is, however, an extreme example of client behaviour. Usually our instructions (and the sentiments underlying them) are more nuanced. What of the mother who is denying all overnight contact on the basis that she has keenly held (though not objectively concerning) anxieties about the father’s ability to parent the children? Or the father who is doggedly pursuing his “right” to 50/50 shared care when that so obviously seems not to be the right outcome for the children in the particular case? Are we to be judge and jury and challenge our client? How, and where does one draw the line?
When I last Tweeted on this topic a year ago, various comments were made :
During my last 4 years of practice as a solicitor I incorporated Resolution code of practice and a “no court” clause into my clients’ T&Cs. I’d recommend it to every member. Let those clients who think their money will talk for them have only the choice of the worst lawyers”@MediationNotLaw
Surely the ultimate blurred line in family law practice. Does ‘taking instructions’ mean I’ll do whatever you tell me? Far too often it does – to the detriment of the profession and its ethics@psychrismills
Have never understood passive acceptance of client instructions when the inevitable result will be damaging for the family. Family lawyers must challenge as much as they guide. What’s the point of us otherwise?@larkinslaw
What if your terms of business allow termination of retainer if client insists on a course of action that you consider to be against a child’s interests? Plus of course if the solicitor/client relationship has broken down you can terminate. Need to be careful though@TopFamilyLawyer
When I was a younger lawyer I often found it hard to properly challenge clients who gave those sorts of instructions. With experience it’s easier. Perhaps training on this would be good for lawyers?@M_Bataillard
And sounding an appropriate note of caution –
Solicitors need to be careful when sacking a client Jo, clients have the right to give instructions that are contrary to our advice and personal ethics. From an #ethics point of view we can’t really know if the sols are giving good advice but receiving instructions to block contact. Also important to balance the code requirements to offer clients a good standard of service and follow instructions. One of the main complaints against family solicitors is that we don’t act on client instructions…we face the second highest rate of complaints and it’s a genuine struggle for us to get the balance right@avoidgravity
8. What else could family lawyers do to reduce conflict and improve the lot of separating families in the decade ahead?
For other suggestions, I return to Twitter following me raising this question last year –
The suggestions made were many, varied and insightful –
One of the key things I think add a value is to address with the client the…common causes of further conflict and how they can act to reduce these. Misunderstandings and misconceptions that one’s own client holds are something we can do something about, whereas ‘the other side’ and how they behave is actually beyond control. As professional advisers we are well-placed to identify the problematic ideas and behaviours our own clients exhibit and seek to break these down. Too much focus is often placed on the ‘opponent’ and dealing with a reaction to their activity, as opposed to proactive conflict resolution within our sphere of influence. It is easy but unhelpful to send winning arguments in correspondence. It is harder but productive to restrict letters to those that will actually be useful@mrichardsonlaw
Family lawyers tend to polarise because their clients do. It’s contagious. To date lawyers have no training in managing their own boundaries in the face of clients’ extreme stress. Authority, boundaries and containment are three related zones. I think there are some key insights that could make this challenging job less prone to invisible psychological potholes@psychrismills
I’ve always thought that the SPIP comes too late – the court here won’t order until late in proceedings even where recommended by CAFCASS – perhaps suggest an earlier SPIP attendance@ChrisLongbottom
A difficult area often dealt with by inexperienced/litigious lawyers and invariably without support from experts to help understand the complex emotional impact of separation on behaviours. Should a specific qualification be required to do this challenging work/don’t kids deserve that?@Williamslegal
The requirement for lawyers to do training about child development, relationship dynamics and the lasting effect on families of litigation over children. That and a database of local therapeutic resources as an alternative. Oh and a realisation that court is rarely the answer!@GillianFLIP
We could ask our clients to try and think of something positive the other parent has done/does. To try and find some balance to the negative assertions. If we can lead negotiations with a positive, it might prevent the downward spiral of blame and defence@tglanvill
How about every correspondence that is sent is always headed “WE PUT CHILDREN FIRST” before the content?@Michelle_Webley
Advising against court proceedings unless there are welfare/safeguarding concerns and promoting communication, discussion and negotiation between parents with the assistance, if necessary, of mediators, collaboratively trained lawyers, family therapists and counsellors@DawnMGore
With the lawyers’ role I do think in the profession early intervention is something we need to improve e.g. referrals to the right expert/program, speak to the other lawyer on the telephone, be mindful of the language we use to our client etc@EtheringtonMarc
Here’s a starter for ten. We all know the code of “my client states…”. Rather than actually saying that, why don’t you talk your client down?@JeremyWesthead
Managing clients’ expectations and ensuring that they put the child first is key. Also communication is a huge one for me, in this day and age correspondence are often inflammatory rather than conciliatory which baffles me@AmandaAdeola
It’s always sad when lawyers make difficult situations even harder. To us, child focused divorces are non-adversarial and focus on collaboration and resolution as opposed to one lawyer “winning”. It’s a change of mindset@CollaborativeTO
Refer them to a positive co-parenting programme@adamcolthorpe
Declining to write letters to opposing agents which are a point by point rant about all the behavioural allegations in the letter they sent you, and focusing instead on solutions. I like, “my client does not accept xyz but in the interests of moving forward proposes abc…”@DianneMillen
If the solicitors were to put the children firmly in the centre of all that happens. The parents often lose perspective due to anger, hurt, fear etc. It must be the solicitors’ role to pull them back and make them consider the child not focus on point scoring and revenge #hardjob@SpanielsSuper
There are no easy answers. Whenever I tweet about these issues, among the responses from lawyers and therapists, there are comments from parents angry at our profession and laying all blame for conflict in children cases squarely at our door. Hopefully many parents can see, objectively, that we all have a role to play in changing children’s experience of parental separation into something more positive.
But what is apparent is that we can, and should, do more as family lawyers to protect children from the fallout from parental separation by keeping down the temperature in every case as far as possible. Ultimately, we are but one piece of the jigsaw and systemic changes, early education of parents (really from the point of a child being conceived) about the importance of good co-parenting when together and especially on separation, and better support for and signposting of parents on separation, are also vital.
So let’s do all we can in 2020 (and beyond) to make positive changes for separating families.