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Do we need a code for solicitors dealing with children disputes?

The other day I came across a tweet from a well-known and very highly regarded family lawyer. She said that she had just attended a meeting of various groups regarding how resolving child arrangements on separation could be more child-focused, and that one strand of the discussion was the role solicitors can or do play in inflaming conflict. She asked how we could change that, and said: “If there were a Code, what would it include?”

But do we need a code for solicitors dealing with children disputes?

The answer, I think, is that we already have one. Or two, to be precise (not including various other available guides).

The first code in time was created by Resolution, the association of family lawyers. Their Code of Practice specifically tells members of the association that they should “Reduce or manage any conflict and confrontation; for example, by not using inflammatory language”, and “Support and encourage families to put the best interests of any children first.” Those two brief statements seem to say all that is really needed, both to deal with the issue of inflaming conflict, and to make sure that discussions regarding arrangements for children are child-focused. You can read the current version of the Code here.

Of course, the Code only applies to members of the association, and not all family law solicitors are members. However, all are members of the Law Society, which also has a code, albeit that it goes under a different name: the Family Law Protocol.

The Family Law Protocol specifically states that it endorses the Resolution Code of Practice, and says that the Protocol should be read in conjunction with the Code. The main protocol, which you can read here, says that solicitors dealing with children matters should:

  • emphasise the need for parents to accept parental responsibility for their children;
  • aim to promote the child’s welfare as the paramount consideration;
  • encourage separation of addressing the children’s needs from those of the parents;
  • encourage the use of mediation and other dispute resolution options;
  • provide information about local support/guidance services;
  • provide information about parenting apart.

And elsewhere in the Protocol (which comprises a book some 200 pages long) there are two whole chapters, setting out guidelines for solicitors dealing with private and public law children matters. The guidelines enlarge upon the above, and set out the duties of solicitors dealing with such cases.

So it will be seen that we already have two codes dealing with the concern regarding the role solicitors can or do play in inflaming conflict in children disputes, and it is difficult to see what more could be added by another code. All family law solicitors will be bound by one or both of the codes, and it could be argued that the endorsement of the Resolution Code by the Law Society Protocol effectively means that all family law solicitors are bound by both codes. Whatever, if they follow the codes then surely they will not be guilty of inflaming conflict in children disputes?

And therein lies the rub, to misquote Shakespeare. These are just codes, with no real sanction if they are not followed. Now, I haven’t been practising myself for some ten years, but when I was I was aware of many solicitors who did not follow the codes, and I would be very surprised if they have all disappeared in that decade, although I would hope that their numbers have reduced. Yes, I’m sure that there are still some solicitors out there who conduct their cases in an inflammatory way, and no doubt also encourage their clients to pursue cases in an aggressive fashion.

But the same would surely be said about any new, additional, code, assuming it could say anything not already covered by the existing codes. Why would a new code stand any better chance of compliance than what we have already?

In short, we don’t need another code. What we have should cover everything we need. What is required is for solicitors to follow the codes that we’ve already got. I’m not necessarily saying that the codes should be strictly enforced (that raises all sorts of complex issues, such as client confidentiality), but there are steps that can be taken, such as courts registering their disapproval of inflammatory tactics by solicitors, and educating solicitors (and the public generally) as to the damaging effects of such tactics.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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