Family valued

The CSA changes are causing much confusion and co-habitation rights are under review.

Michael Gerrard finds that unless legal aid improves, fewer solicitors will be prepared to work in the family sector despite the new protocol

This year has been a time for coming to terms with a new protocol for family law solicitors.

There are several issues currently occupying practitioners, not least changes to the workings of the Child Support Agency, cohabitation rights and the drop in the number of solicitors prepared to take on publicly funded work.

But the protocol - introduced in February this year as the framework for the whole sector - is undoubtedly the most important topic of the moment, and is the subject of a key session at this month's Solicitors Annual Conference in Manchester.

Peter Watson-Lee, chairman of the Law Society's family law committee, a partner at Bournemouth's Williams Thompson and one of the speakers at the session, says that in his view, solicitors have too often in the past adopted the aggressive tones of commercial litigation when dealing with family law, with the effect of often adding to the aggravation.

He says: 'Family law is very different from business, where aggression is all right to use.

But in our area of work, an aggressive approach can mean that a man won't see his kids again.'

The protocol, the result of a two-year collaboration between Mr Watson-Lee's committee, the Solicitors Family Law Association (SFLA), Legal Services Commission and the Lord Chancellor's Department (LCD), clearly sets out in its preamble that its aim is 'to encourage a constructive and conciliatory approach to the resolution of family disputes'.

In essence, it seeks to provide a clear set of rules and a framework within which family lawyers should conduct themselves.

Based in part on the SFLA's long-standing code of conduct, it has little to surprise experienced practitioners, but that is not to say the protocol is without its critics.

One prominent practitioner notes: 'It reduces itself to a list of exhortations for people to use it, but the Law Society has no powers of enforcement.'

While this is strictly true, others argue that these are early days and that the courts could take a dim view, if it is proved that a solicitor has ignored the protocol.

SFLA chairwoman Jane Craig, a partner at London-based Manches, says: 'The court can mete out punishment if it believes that costs have been incurred unnecessarily, because a solicitor has not acted in accordance with best practice, that is to say, the protocol.'

Though this is the biggest change to have hit the sector in recent times, family law is the scene for many other debates.

Top of that list is the question of ancillary relief, the financial settlement made at the time of divorce.

Traditionally, the court has used the principle of 'reasonable requirement' as its guide to how much a wife should receive in settlement, but this established method was consigned to history as the result of a landmark hearing two years ago.

In White v White, the House of Lords threw out accepted practice and replaced it with what was called the 'yardstick of equality', which in theory could see assets divided 50/50 over and above the previous concept of reasonableness.

The repercussions from the case have continued to reverberate in the family law sector, resulting in the specialist bodies setting up committees and discussing the question of ancillary relief with the judiciary and government.

The family law committee says the matter needs urgent attention and is asking for guidelines.

There is much support for this approach.

Julian Lipson, an assistant at City-based private client firm Withers, says: 'At the moment there is difficulty for the solicitor.

With the judiciary given such wide discretion, it is becoming harder for us to advise clients on what is likely to happen.'

Other solicitors are determined that a solution should not be found through the imposition of fresh legislation.

Gazette columnist David Burrows, of the eponymous Bristol firm and SFLA vice-chairman, maintains that allowing politicians to intrude could be problematic, as shown by the current debacle surrounding changes to maintenance collection by the Child Support Agency (CSA).

The Children Act 2000 called for the introduction of a new method of calculating support payments, based solely on the father's income.

Though due to be in place by spring this year, defects with the new software required for the change mean practitioners and clients alike are left in limbo, with solicitors unsure whether to use the old or new system when calculating child maintenance payments.

The latest noises coming from government suggest that all will be in place by next summer at the earliest, but at least these changes are on the legislative books, unlike the issue of cohabitation rights.

Last year, two separate private members bills on the subject failed to make it through Parliament, but the case for change is one strongly supported by the specialist associations.

The Law Society's ruling Council recently approved a position paper prepared by the family law committee which will be the start of a campaign to reform the law for cohabitees (see [2002] Gazette, 25 July, 6).

Mr Watson-Lee explains: 'Our view is that people who have cohabited for more than two years, or who have children, should either get some property right adjustments or some form of maintenance.

'One of the roles of law as we see it is to help the vulnerable - and quite often cohabitees after many years in a relationship are vulnerable - and we should do all we can to help them.'

He adds that the committee believes such rights should also cover same-sex relationships, but given the nature of family law it is perhaps unsurprising that practitioners find themselves at the cutting edge of social issues.

The scar of domestic violence is one such issue and currently a working party made up of the specialist groups and government bodies is investigating it.

Ms Craig says: 'We are looking at all aspects of domestic violence, including current legislation and the issue in relation to the subject of contact.'

In addition to social issues, global events also have an effect on this practice area.

Diane Benussi, head at specialist Birmingham-based divorce firm Benussi & Co, notes: 'Following the events of 11 September, we noticed the number of people seeking a divorce fell, though they have grown since.

'Tragic events like that make people more circumspect about acting on such things as it puts their private life in perspective.'

Many practitioners believe the sector is being fundamentally weakened due to poor pay for publicly funded work despite feeling a strong attachment to family law.

Quite simply, many are finding that legal aid - despite recent rises for specialist children lawyers - does not pay enough to cover the bills.

Mr Watson-Lee explains: 'It is a major problem that rates of pay have simply not kept up and consequently we are seeing large numbers of family law solicitors stop doing legal aid work.

'For many years when you asked the LCD about raising pay for legal aid, they would answer that lots of people were still doing the work, so why raise the level of pay? But now we are facing a crisis situation.'

The specialist groups assert that in several areas of the country such as London, it is becoming increasingly difficult to find practitioners willing to do the work at public rates.

So while the protocol starts working on the problem of good practice, family lawyers - like most lawyers doing publicly funded work - increasingly maintain that the issue of legal aid needs to be addressed to preserve the proper functioning of the sector.

Michael Gerrard is a freelance journalist