Family lawyers should be forced to follow good practice to protect children from “acrimonious legal representation” and report it to their regulator, a major report has concluded.
It also said there was a “lack of inter-disciplinary practice” by family lawyers and insufficient knowledge of the role of other professionals.
The family solutions group (FSG), part of the judiciary’s private law working group, said the Law Society’s family law protocol emphasised the “need to achieve resolution by non-court routes”, with litigation being “the last resort”.
However, the protocol was “not enforced” and “rarely referred to” by lawyers or judges. The consequence was “a profession with unenforced regulations, responding to unresolved emotions presented by their clients” and owing “no professional duty” to the children involved.
“We believe any practice, legal or other, which has the potential to harm children should be regulated, with practitioners held to account for their conduct.
“We invite both the Law Society and the President of the Family Division to introduce accountability to legal professionals to adhere to the Law Society’s family law protocol.”
The FSG said the protocol endorsed family law group Resolution’s code of practice, but there was “limited” enforcement by Resolution to sanction members for breaching the code.
“There are many family solicitors whose practice adheres to the Law Society protocol, who work hard to support their clients to resolve issues away from court, wherever possible.
“However, this is not uniform across the profession. There are certain firms which actively discourage Resolution membership and non-court options, and/or delegate the work to the most junior lawyers (who have the least life experience).
“It is a not uncommon business model to initiate a court process without first exploring other means for the clients to resolve their issues. It is those firms in particular whose practice we challenge.”
In the report, the FSG called for a shift in language away from legal disputes towards one supporting parents to resolve issues together, using the term ‘resolving issues’ rather than ‘dispute resolution’.
Children were vulnerable to parental conflict “which can be fuelled by more litigation-focused solicitors”, and a “glance at the main legal directories” showed that qualities such as being a “brave and persistent fighter” for clients were still “revered”.
The FSG said: “There is little awareness of the risk to children from prolonging and intensifying the period of parental conflict.
“While some judges (usually at a final hearing) can be critical of a litigant’s (and their lawyers’) approach, by that stage the damage will have already been done.”
The report recommended that local networks of ‘family professionals’ should be set up “to promote an integrated approach to problem-solving issues between parents, with therapists, parenting specialists, mediators and legal services”.
These professionals all had different codes of conduct but the separating family needed “multi-disciplinary support”, which was “very unlikely to be found in one person”.
The FSG said: “We would welcome a move towards an overarching ‘family profession’ with differing specialisms within it, but with shared standards and a common goal to meet the wider needs of the separating family, with the emphasis on safety, child welfare and a co-operative parenting approach.”
We reported recently that an increasing number of family law specialist teams were joining with other disciplines and professionals to give clients a wider range of services that do not involve the court process.
The group recommended that the Law Society create a new edition of its protocol stressing the need for non-court resolution, in line with the new no-fault divorce legislation, expected to come into force this time next year.
Training in the “psychological consequences of family separation” on parents and children should be an “essential CPD target for all family lawyers”.
To “create accountability”, a mandatory return to the Solicitors Regulation Authority for family lawyers should be introduced, “evidencing their CPD training as a family practitioner, their inter-disciplinary practice and their referrals to out-of-court options”.
Mr Justice Cobb, chair of the private law working group, commented: “The FSG is clear in its objective to reach separating families before they turn to the law.
“This is all the more important, as the report makes clear, given the extraordinary and ever-increasing pressures on the court system at present.”
Cobb J said he was confident that the report would “make a significant contribution to the design of long-term systemic reforms around family separation” as well as “short-term initiatives”.