My clients and I open the door to the creative problem solver within them, their ex and their ex's lawyer...
This report is well written and extremely timeous; it’s a game changer. Time is running out for the children of separating families in a catastrophic and crumbling court system (para 12 of the report – I paraphrase) we as a family law profession need to work together to find solutions.
I set up O’Sullivan Family Law (10 years or so ago) and quickly I realised we needed more support for our clients. So I set up Sussex Family Solutions with others, so we could focus on how to sort things out in interdisciplinary teams; without going to court. I won’t and don’t (if I can help it) go to court. The answers for my clients are not in court. They are not contained in the usual posturing letters between lawyers. They are not in the normal narrative of break ups and bust ups and the toxic claims of ‘I’m right they are wrong’.
As a society we do need to change the narrative, to educate and make it normal for people to parent co-operatively after separation (para 15). Other countries have really worked hard to try and achieve this – Canada and Australia to name but two (para 77). I’d be in favour of some mandatory training (as the report recommends) to change this mindset.
On my wish list is that soap operas and mainstream films take this on too and help to change the narrative. Any screenwriters want some help, just let me know? My fees are reasonable!
I want to be part of a ‘holistic’ approach (para 18 of the report) as a family law professional. My clients often need to work with family consultants (who use counselling and therapeutic skills) ‘to take into account of the parties’ emotional state’. That we mediators and lawyers work with them and each other. That sometimes we wait for this early (and usually ongoing) work to take place. Thereafter, clients have a bespoke programme of action to start sorting things out. That we family law professionals work together so they get the best out of us and the most cost-effective solution for them. Every family is different (see para 21 of the report) and we need to find what they need and when.
This is why I asked Penny Coombes of Iris Brighton to set up a Parenting After Parting programme (as recommended para 19 of the report). We have successfully referred many couples to her team and they have worked productively and co-operatively to sort out parenting plans to suit them and their children.
I am so very glad that the report focusses on Article 12 of the UN Convention of the Rights of the Child. That ‘in all matters affecting her or him, and the subsequent right for those view to be given due weight, according to the child’s age and maturity.’ (para 64). This doesn’t successfully happen much at the moment. There is the possibly of Child Inclusive Mediation, where children meet with a specially trained mediator who (with everyone’s – including the children’s- consent) meets with the child(ren) and sends back messages. This is often vital in the parents’ decision making. The children are part of things. Young people when asked about their parents’ divorce/break up continue to be unhappy that they knew little of what was going on and were never consulted; this is one way of making sure they are part of things.
I would urge other family law professionals to come together in this way as recommended (para 286 of the report); the way we work at Sussex Family Solutions . Hitherto this has happened geographically – it’s hard to beat the work we are doing in Brighton/Sussex. But maybe it needn’t be local anymore. We have moved online as a profession, using Zoom etc. There is no reason why we shouldn’t work with like-minded folks from all over the country (maybe even the world). Working together is much better for our clients but it’s also better for us. To function in a culture of trust is good for our well being too.
Working together means that we can think creatively about what might suit a case, see Chapter 5 of the report. That we might need an early neutral evaluation from a jointly instructed counsel if there is something legally contentious or novel. That we might be able to work not only in mediation but also in round table meetings or collaboratively; these need to be ethically based in good practice. There are plenty of opportunities to work together as outlined in the report’s table on pages 73 to 74. I disagree, with the reporters, that Arbitration needs to be an exercise in working against each other. Instead, the lawyers can work together to get an Arbitral award to keep costs and acrimony down.
This blog is not written in my capacity as a member of The Law Society Family Law Panel or as a member of both Resolution DR and EDI Committees. Each organisation will, in due course, respond publicly to the report. But see in particular paras 291 to 296 of the report where accountability of my profession is discussed. In my personal capacity I endorse the report and seek more responsibility in our profession. Solicitors have a bad reputation for making things worse. In many ways, the worse things get for the couple the better it is for them i.e. the more money that is made. When I first qualified as a solicitor in 2003, 80% of people who separated saw a lawyer – that percentage has reduced to around 30%. This is partly due to the death of legal aid but also because the public have got wise to us.
We, as a profession need to move away from this way of working. All our professional training has been about winning; focussing on the problem. The traditional way of working, to write letters and when that doesn’t work to issue an application at court is not fit for purpose. The courts simply don’t work. This way of operating doesn’t work. This is why I dedicate some time every year to work with law students at local universities (Sussex University and Brighton University) to introduce them to the idea of resolution processes that do not involve court.
I agree with the report, around 80% of cases that are currently at court could easily be moved out to some other forum (para 34). I would agree that a court-based triage or diversionary scheme or cascade of schemes needs to emerge to keep parents away from court in the first or subsequent place.
But what of those that issue at court without having a mind or don’t even consider using other processes to help themselves (if in person) or their clients. I feel we need to move more towards the civil law rules where this behaviour is punishable in costs orders against them (see para 155 of the report). Why is the family law arena any different? Our civil law colleagues find it incredible that family law professionals operate they way that they do and (almost always) without penalty.
If you are a client – look at your lawyer or choose a lawyer by establishing if they can work in a way that will make things better for you. If you are a lawyer consider working in this way as a new normal. There are plenty of new normal’ s at the moment, why not this? Start or join a group if you aren’t already in one. If you are in a group that isn’t functioning, this report could be the kick-start you’ve been looking for. The time is now.
Thank you so much to the report writers. You have done a sterling job and I for one endorse the report. It’s a game changer.