Family Law Protocol

• Publisher: Law Society
• Year: 2015
• ISBN:
  9781784460242
• Topic: Law
• Subtopic: Family Law
• Index: Law

This authoritative set of best practice guidelines has been comprehensively updated to cover all the changes since 2010 and includes two new chapters on forced marriage and alternative pathways to parenthood. Endorsed by the President of the Family Division, the Protocol is the standard by which members of the Law Society and Resolution are judged.The fourth edition of this indispensable book takes account of significant developments including: - the creation of the Family Court- new legislation on honour based violence, forced marriage and FGM- new procedures for non-court dispute resolution, such as arbitration and MIAMs- key changes to legal aid provision introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.Developed by the Law Society in association with Resolution and other leading organisations, interest groups and figures in the field, this is the essential text for family law practitioners.

PART 1

Main protocol

1.1SCOPE

1.1.1This chapter details those overarching matters family lawyers must consider in order to promote their clients’ best interests. The subsequent chapters provide a wealth of information as regards particular areas of practice.

1.2RESOLUTION CODE OF PRACTICE

1.2.1The Family Law Protocol endorses, and should be read in conjunction with, the Resolution Code of Practice, namely a commitment to resolve a dispute in a non-confrontational and constructive way to preserve people’s dignity and to encourage agreements. The Resolution Code of Practice is set out in full at www.resolution.org.uk.

1.3GUIDES TO GOOD PRACTICE

1.3.1The following Practice Notes have been published by the Law Society and can be accessed under the Practice Notes section at www.lawsociety.org.uk/advice/practice-notes:

• Acting in the Absence of a Children’s Guardian (21 August 2009)
• Attendance of Solicitors at Local Authority Children Act Meetings(9 January 2013)
• Unbundling Civil Legal Services (19 March 2015)

1.3.2The Law Society has published under the Family Court Resources Section of the website dedicated tools and resources for solicitors working in family courts at www.lawsociety.org.uk/advice/family-court-resources.

1.3.3Joint guidelines on dealing with litigants in person (LiPs) published by the Law Society, the Bar Council and CILEx are available to download from www.lawsociety.org.uk/support-services/advice/articles/litigants-in-person-new-guidelines-for-lawyers-june-2015.

1.3.4The following Resolution Guides to Good Practice are to be found on the public part of the Resolution website at www.resolution.org.uk:

• Collaborative Professionals
• Correspondence
• Discussing Dispute Resolution Options
• Domestic Abuse Cases
• International Issues
• Mediation
• Referrals to Contact Centres
• Service of Documents
• Social Media
• Working with the Bar in Family Cases
• Working with Clients
• Working with Litigants in Person
• Working with Vulnerable Clients

1.4SOLICITORS REGULATION AUTHORITY

1.4.1All solicitors must comply with the mandatory principles as set out in the SRA Code of Conduct 2011 at www.sra.org.uk. This Code sets out outcomes-focused conduct requirements so that solicitors can consider how best to achieve the right outcomes for clients, taking into account the way that solicitors work and their client base. The Code is underpinned by effective, risk-based supervision and enforcement.

1.5ANTI-MONEY LAUNDERING

1.5.1All solicitors need to be compliant with anti-money laundering requirements. These include the Proceeds of Crime Act 2002, the Terrorism Act 2000, the Money Laundering Regulations 2007, and all amending legislation. See the Law Society’s Practice Note: Anti-money Laundering (October 2013), at www.lawsociety.org.uk/advice/practice-notes.

1.6FIRST MEETING

1.6.1Solicitors should in all cases discuss with clients at the first meeting:

• method of communication with the client;
• possibility of counselling being appropriate to help the client with differing emotions following a relationship breakdown;
• timescale and potential costs involved and how their case will be funded (in particular, solicitors must consider whether clients are or remain eligible for public funding (see Truex v. Kitchin [2007] EWCA Civ 618));
• if any emergency steps are needed and the options available (including safeguarding the client, children or any assets);
• how best to proceed with next steps.

Children

1.6.2Do:

• 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.

Resolution has an Advice Centre and an Advice for Parents section on its website at www.resolution.org.uk/advice_centre.

Reconciliation

1.6.3Do consider with the client whether their relationship is at an end and have available details of referral agencies who can assist.

Dispute resolution options

1.6.4Do consider with the client the following alternatives:

• agreement between the parties;
• negotiation between the parties’ solicitors;
• mediation;
• collaborative law;
• family arbitration;
• court application.

Inform the client that these may be used in combination and are not mutually exclusive.

Domestic abuse

1.6.5Do be aware of:

• any incidents of domestic abuse, the need to screen for it and to make a risk assessment;
• civil and criminal remedies.

Jurisdictional issues

1.6.6Do consider if there are such issues including, for Europe, the impact of the Council Regulation (EC) 2201/2003 (‘Brussels II revised’).

1.7CHILDREN AND PROTECTED PARTIES

1.7.1Solicitors must bear in mind that they cannot be retained by clients incapable of giving instructions (SRA Code of Conduct 2011, Chapter 1, indicative behaviour 1.6). The terms ‘child’ and ‘protected party’ are now used to replace ‘under a disability’.

1.7.2A ‘protected party’ means a party, or an intended party, who lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct the proceedings – see rule 2.3 of the Family Procedure Rules (FPR) 2010, SI 2010/2955. Such a party must have a litigation friend to conduct proceedings on his or her behalf.

1.7.3The procedure and basis for the...