1.

This consultation paper invites views on:-- whether the Law Society should introduce an accreditation scheme for family lawyers;-- what the criteria for membership of such a scheme should be.2.

A later paper will address the question of the regulation of mediation services provided by solicitors.The proposed family lawyers accreditation scheme would ensure that family law practitioners appreciated the role of mediation in divorce, but would not prepare solicitors for undertaking mediation work.SHOULD AN ACCREDITATION SCHEME BE INTRODUCED?3.

The main arguments in favour of establishing an accreditation scheme for family lawyers are:-- Better information for the public.

Family law is particularly complex, as legal rights and the need to negotiate acceptable settlements must be dealt with in a context where the parties concerned need to have a continuing relationship, particularly about future arrangements for children.

Most family law work is undertaken by practitioners who are highly competent and who have the knowledge, skills and sensitivity to provide a high quality service.

But research shows that a minority is far less proficient.

That may lead to an inappropriately adversarial approach or, at the other extreme, failure to ensure that the economically weaker party is treated fairly.

At present, it is difficult for the public to identify which solicitors can best be relied on to provide the service they need.-- An alternative to legal aid franchising.

In the legal aid green paper the government proposed that, in future, legal aid clients should be restricted to using franchise holders.

They justify this restriction in choice by arguing that unrestricted choice of solicitor means that clients will, in some cases, choose solicitors who do not provide a satisfactory quality of service.

In the Society's view there is a strong argument for legal aid clients, like those paying privately, retaining an unrestricted choice of solicitor.

However, if restrictions were to be imposed they should clearly go no further than is necessary for the government's declared purpose.

Establishing a family lawyers accreditation scheme would provide an alternative (and probably better) indicator of quality than legal aid franchising.

The government has not given any assurance that legal aid clients could cont inue to use solicitors who were members of an accreditation scheme but did not hold a Legal Aid Board franchise.

However, in the Society's view it would be difficult to justify prohibiting clients from using such solicitors, particularly as relying on franchising alone would have implications for the independence of the profession from state control.4.

The main arguments against establishing an accreditation scheme are:-- To do so would undermine the qualification of solicitor.

Some practitioners consider that establishing accreditation schemes especially for mainstream areas such as family law undermines the qualification of solicitor itself, because it implies that the public needs to look for some additional accreditation before deciding which solicitor to instruct in any given area.-- An accreditation scheme might become exclusive.

If a family law accreditation scheme was introduced it might become difficult for solicitors who were not accredited to continue to practise family law.

This might particularly prejudice generalist practitioners, whose services are essential if access to justice is to be maintained, particularly in less urban areas.-- Accreditation schemes impose a burden on practitioners and involve significant administrative effort to run the scheme.

Joining accreditation schemes requires practitioners at least to complete complex and time consuming questionnaires, and in some cases to be interviewed, or to attend mandatory courses in particular topics.

For the Law Society, the administrative burden of establishing whether or not individual applicants meet the criteria, (including provision for appeals) and of maintaining lists of scheme members has proved to be considerable.

All this has to be paid for by the individual applicants for schemes in the form of lost fee-earning time, course fees and fees for panel membership.HOW MIGHT AN ACCREDITATION SCHEME WORK?Scope of the scheme5.

It is envisaged that the scheme would concentrate on private law family matters.

The main focus would thus be on divorce and the arrangements subsequent to divorce.

The Society's children panel -- which accredits practitioners skilled in public law matters concerning children -- would continue, irrespective of whether a family law scheme was established.

It would be necessary to establish clearly the relationship between the two panels, eg in relation to the nature of experience which will count when applying for membership.Choice of approach6.

It is proposed that any accreditation scheme for family lawyers would be a personal one which would enable members of the public to identify individual family law specialists.

However, in meeting the requirements of such a scheme, the profession would be offered a choice between:-- personal accreditation of specialists who would be validated by a Law Society approved scheme direct (the direct approach to accreditation); and-- personal accreditation of specialists by firms themselves under a system which would be adopted by those firms and validated in a way in which the client could have confidence (the indirect approach to accreditation).Criteria for membership7.

The criteria for membership of any accreditation scheme naturally need to be designed so as to ensure that members of the scheme have the knowledge and skills necessary to provide a good quality service.At the same time, it is important to ensure that they do not amount to an excessive barrier to entry.

The test for membership can broadly be described as 'would an informed observer be happy if a friend or relativ e of his or hers had instructed the solicitor concerned?'THE DIRECT APPROACH TO ACCREDITATION8.

It is envisaged that the direct approach to accreditation would involve:-- certification by the individual applicant as to his or her possession of the minimum overall level of experience required;-- in the case of those applicants whose lack of experience did not justify the assumption that they had the appropriate level of knowledge, a written test of knowledge;-- by the applicant subscribing to a code of practice concerning the approach to family work; and-- a commitment to keeping knowledge up-to-date.These proposals are discussed in more detail in the paragraphs which follow.POST-QUALIFICATION EXPERIENCE9.

The courts and legal services committee considers that family law work demands a measure of maturity and experience which is unlikely to be acquired without at least three years' post-qualification experience.The committee would welcome views on whether there should be any relaxation of this requirement for those with substantial pre-qualification experience of family law work, for example as a trainee solicitor or as a legal executive.EXPERIENCE AND KNOWLEDGE OF FAMILY LAW WORK10.

There is an argument for requiring applicants to show a minimum period of post-qualification experience in family law work; for requiring them to take a test of knowledge through a written examination, or both.

The committee's preliminary view is that all applicants will need to submit an application form giving details of some post-qualification experience, even if they could satisfy any test of knowledge.

The committee does not consider that knowledge of the law and procedure alone is enough to ensure good quality service -- some experience of dealing with clients is also essential.

However, the committee does not consider it will be necessary for all applicants to be specifically tested as to their knowledge.Practitioners who have substantial recent experience of family law work can reasonably be assumed to have the appropriate level of basic knowledge.

However, practitioners with less substantial post-qualification experience would need to be tested specifically on their knowledge.MEASURING EXPERIENCE OF FAMILY LAW WORK11.

One question is whether the experience requirement is best expressed in terms of proportion of case load (or of time spent) or in terms of the number of hours or cases undertaken.The committee's provisional view is that it is better to rely on hours spent, since the number of cases will vary substantially according to the complexity of the matters dealt with, whilst requiring a specified proportion of time spent or caseload would mean that those with particularly long working weeks would need to show much greater total experience than those working a shorter week.

The committee would be grateful for views as to whether this is the right approach, and, if so, as to whether any special provision should be made for those who have had career breaks or who are working part-time.EXEMPTION FROM THE TEST OF KNOWLEDGE12.

The committee's provisional view is that those who have spent an average of at least 300-350 hours a year on family law work over the last three years should be exempt from the test of knowledge.

This represents 25%-30% of most practitioners' time, and amounts to a total of almost one year's full time experience.THE MINIMUM OVERALL EXPERIENCE REQUIRED13.

Applicants with less experience than is required for exemption from the written examination should, nevertheless, be eligible to join the accreditation scheme provided they pass the test, and provided they have the necessary minimum post-qualification experience to have developed the skills of dealing sensitively with clients in the particular circumstances of divorce.

The committee considers that the minimum requirement should be 300-350 hours work, to have been carried out within the previous five years.WHAT BREADTH OF EXPERIENCE SHOULD BE REQUIRED?14.

The accreditation scheme would be designed to cover the broad range of family law work, except for public law Children Act matters.

It would thus be important for practitioners to have knowledge of how to deal with all the main problems likely to arise in this area, including in particular;-- the courts' jurisdiction in domestic violence matters (including between co-habitees);-- residence and contact disputes;-- financial provision disputes (including pensions), including those concerning co-habitees;-- Child Support Agency jurisdiction and assessments;-- the impact of legal aid;-- child abduction; and-- the role and scope for mediation.15.

The committee believes it is important that applicants are willing and able to act as advocates in disputed cases where appropriate, although it should not be a requirement that they routinely do so.16.

The committee does not believe it should be necessary for applicants to show experience of having dealt with cases in which each of the problem areas listed above has arisen.

In many cases, knowledge of the available remedies and procedures is sufficient.

On the other hand, it would, in the committee's view, clearly not be satisfactory for an applicant to join the scheme if his or her experience was confined to undisputed divorces between childless couples.

The committee believes applicants should be required to show experience of dealing with residence and contact disputes; with disputes about financial provision; and with Child Support Agency matters.

They should also have acted as advocate in some cases.17.

The committee would welcome views on the extent to which experience in related areas such as public law child care work or mediation in family law cases should be relevant in meeting the experience requirements for the family law scheme.SENSITIVITY/APPROACH TO THE WORK18.

It is difficult to measure whether individual practitioners show the necessary sensitivity in dealing with family law clients and whether they take an unduly adversarial approach to the work.

However, these are important elements in the provision of an appropriate service to clients.19.

The committee believes that the best way of dealing with the question of sensitivity and the approach to the work is to ensure that members of the accreditation scheme subscribe to an appropriate code of good practice.

A useful starting point would be the code which the Solicitors Family Law Association has developed.If adherence to a code of practice were required, members of the accreditation scheme would only be permitted to depart from the non-adversarial approach outlined in the code if specifically requested to do so by a client.A breach of the code would not in itself be a matter of discipline, but repeated failure to abide by it might lead to removal from the scheme.

The practicalities (including the financial implications) of providing complaints and appeals procedures for allegations of such repeated failures would naturally need detailed consideration.ENSURING UP-TO-DATE KNOWLEDGE20.

The committee believes that any accreditation scheme must ensure that members keep up-to-date with developments in the area concerned.

In the case of the family law scheme, it should be mandatory for members of the scheme to have attended a one-day course on the Family Law Act, assuming that the Bill becomes law in roughly its present form.The committee believes that members of the scheme should also show a commitment to continuing professional development in their field.

This might best be achieved by requiring members of the scheme to acquire an average of at least five CPD hours in family law each year over the period of their membership.RE-SELECTION21.

Members of the scheme should be subject to periodic re-selection in order to ensure that they still qualify for membership.

The committee's provisional view is that membership should last for five years in the first instance.THE INDIRECT ROUTE TO PERSONAL ACCREDITATION22.

This consultation paper has concentrated primarily on establishing a possible framework for directly accrediting competent individual family law solicitors, adopting broadly the same approach as the Law Society's existing specialist panels.

However, such a model would involve duplication for solicitors working in firms which have adopted firm-based accreditation schemes which are designed to ensure the competence of their staff.

This is the approach taken by the investors in people scheme.23.

It is proposed that a family lawyer who is a member of a firm accredited to investors in people should be granted a 'passport' and be treated as automatically meeting the requirements of the direct accreditation scheme if the following additional requirements are met by the firm;-- the firm includes a commitment in its business plan to offer family law services;-- the firm provides a training action plan for each individual family law practitioner containing a commitment to an appropriate proportion of CPD in family law.

This proportion will be higher in the case of an inexperienced practitioner; and-- the firm adopts the standards of competence for the direct family law accreditation scheme, and certifies that the individual lawyer concerned has met the standards.24.

Until the take up of investors in people becomes more common within the profession, transitional arrangements could extend the passport to firms which had undertaken their preliminary investors in people assessment, but which had not yet been finally accredited to the standard of investors in people.25.

The passport would continue to apply in favour of an individual leaving an investors in people firm, provided that he or she had spent at least one year post-qualification with that firm.

However, on leaving an investors in people firm, the 'passported' individual would be subject to the re-accreditation rules under the direct accreditation scheme.26.

These requirements would be self-certified by firms and would be subject to checking by the investor in people assessor.27.

In principle, family lawyers who can show through their firm's membership of any accreditation scheme that they meet the same criteria as those qualifying for direct accreditation should be entitled to join the family lawyers accreditation scheme.

This passport arrangement need not be confined to lawyers whose firms are accredited to investors in people.

The committee would welcome views on how such a passport might operate for individuals in firms which are accredited to other schemes -- in particular those accredited as meeting the practice management standards, when that scheme is available.COST OF THE SCHEME28.

The professional standards directorate -- which administers the existing Law Society specialist panels -- has estimated that it would cost around £1.75 million to administer a scheme with up to 10,000 members for a period of five years.

On that basis, the cost per member would be likely to be £175 for five-year membership.

However, 10,000 is the highest estimate for the number of applicants and, as the number reduces, the cost per applicant is likely to rise.The personal injury panel -- which has 2140 members -- costs just over £300 for five-year membership.

Assuming that it is of broadly the same size, a family law scheme would be likely to involve roughly the same cost.29.

There will also be costs for applicants in complying with the criteria for membership.

Those who need to take the examination to test their knowledge would need to meet fees which might be in the region of £150, although that can be at best an estimate until the format of the examination is settled.

Some applicants might wish to take a training course to prepare for the examination.

There will also be the cost of complying with the CPD requirement, although this may in practice be little more than most family practitioners would wish to undertake to keep their knowledge up to date, whether or not an accreditation scheme were to be introduced.30.

There will also be cost implications if it is decided to include within the scheme complaints and appeals procedures for dealing with allegations of failure to abide by the code, especially if such failure may attract the sanction of removal from the scheme.