Another code for solicitors dealing with children disputes could be a bad thing

Children|Family Law|June 10th 2019

I wrote here last week explaining why we don’t need another code of conduct for solicitors dealing with children disputes (we already have one). Remarkably, despite my post there are still some who are not convinced, and who continue to call for a new code. Yes, I know that it is difficult to understand that some people disagree with me, but clearly I need to explain in more detail.

Seriously, I’m sure that most of those who make these calls are well meaning, but what bothers me is the implied idea that any further code must by definition be a good thing. But you can’t solve everything just by making more rules. It needs to be understood that ‘more is not necessarily better’. In fact, more can actually be a bad thing.

For a start, another code would impose a further burden on family law solicitors, who are already have enough law, rules, guidance and codes to weigh them down. Yes, I realise that few lay people are going to be concerned about how much solicitors are required to know, but every new thing further impinges upon their freedom of action. I’ve often thought that I’m glad I stopped practising ten years ago, as there now so many sets of rules, guidance and codes that I would be afraid to advise a client upon a particular course of action, for fear that I might be in breach of the latest edict setting out the ‘correct’ way to proceed.

And any new code will obviously be more complicated than what we have now, dealing with specific situations that its proponents believe are required to be covered (more of which in a moment), rather than generalisations. But surely, a more complicated code is less likely to be remembered and complied with than a simple code. The beauty of the Resolution Code is its simplicity. It essentially comprises seven short and easy to remember sentences (excluding the Guides to Good Practice). And most of it is common sense anyway (again, more of which in a moment). In the realm of children disputes, if one just follows the first two points of the Code (‘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’) then you are not going to go far wrong. You can simply apply those general principles to whatever situation you are faced with.

Which brings me to my next point. A more complicated code is, by definition, going to be more rigid. It will prescribe what to do in a given situation. But you simply cannot cover all possible situations that a family lawyer will face, and very often the situation is not as ‘black and white’ as any code maker may envisage. In fact, a rigid code may even point towards the wrong outcome.

And that brings me to my last point. A rigid code encourages solicitors to disregard the one thing that they require above all else: common sense (yes, I accept that some family law solicitors may be lacking in this commodity, but I’m sure the vast majority are not.) Common sense is what is really required to guide family law solicitors, just as it is anyone else. Yes, use a basic code as an outline, but apply common sense to it. Don’t let yourself be blindly guided by a code, just because you have been told that you must follow it.

Let us finish by briefly looking at some practical examples. After she read my last post, that well-known and very highly regarded family lawyer to whom I referred, and who suggests a further code may be required, sent me the following tweet (I have expanded the abbreviations, for the sake of clarity):

“Agree that respecting/enforcing existing codes vital. But clear that more needed. Are we, for example, under a duty to follow instructions if they are obviously in conflict with the child’s best interests? What should be our role getting clients to sign a parenting pledge? What about litigants in person?”

OK, I think I can deal with those three examples very quickly, using what we have already: follow the ‘put the best interests of the child first’ point in the Resolution Code, and apply common sense. Sorted.

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.

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