How do you define a family lawyer?
Published online by Cambridge University Press: 02 January 2018
Family law has not only become a specialism in its own right, but family law practitioners have claimed for themselves special characteristics. This article reviews the attributes and skills to which the legal profession, and particularly the solicitors branch, aspires. It notes that the ‘specialist’ forms of client care and case management, familiarity with rules and procedures and a conciliatory approach are not unique to family lawyering. Family lawyers also require themselves to have knowledge of ‘non-law’ matters, especially those relating to the welfare of children. On reviewing recent empirical research studies about the work of solicitors, the article asserts that, for family lawyers, non-law norms control their practice and form the framework for a very particular type of client care. The article then goes on to examine - by using research on solicitors attitudes to the ‘meaning’ of the concept of parental responsibility - how practitioners cope with the tensions inherent in modern family legislation. It concludes that solicitors in practice convey policy messages rather than clear messages about legal rights and remedies.
- Research Article
- Copyright © Society of Legal Scholars 1999
1. M Freeman ‘Towards a Critical Theory of Family Law’ (1985) 38 Current Legal Problems 153-185; B Hoggett ‘Private Lives and Public Duties, What is Family Law For?’ The Eighth ESRC Annual Lecture 23 October 1997; J. Eekelaar ‘What is “Critical” Family Law?’ (1989)108 LQR 244; K O'Donovan Family Law Matters (London: Pluto Press, 1993); J Dewar ‘The Normal Chaos of Family Law’ (1998) 61 (4) MLR 467–485.
2. Lord Irvine of Lairg, Hansard, Lords, 11 Dec 1996, 1095, in a debate on the role of the family.
3. Judge Nigel Fricker ‘Family Law is Different’ (1995) 33(4) Family and Conciliation Courts Rev 403-414 at 403.
4. Fricker, concentrating on the judiciary, argues that family law is different because the judge must make a choice, ‘that belongs to the parties’, about the future needs of the family. For him, the standard model is where a judge deals with past events on the basis of legal rights (above n 3 at 404). There has, however, been considerable change in the organisation and practice of lawyers in the last two decades (see P Thomas ‘Thatcher's Will’ (1992) 19(1) J Law & Soc 1-12). Hanlon, for example, has argued that ‘the idea of a unified and homogeneous solicitors profession is past its sell by date’ (G Hanlon ‘A Profession in Transition? - Lawyers, The Market and Significant Others’ (1997) 60 MLR 798-822 at 822).
5. For a review of several such studies relating to divorce lawyers see C Piper ‘Norms and Negotiation in Mediation and Divorce’ in M Freeman (ed) Divorce: Where Next? (Aldershot: Dartmouth, 1996) pp 68–72.
6. See F Bawdon ‘In the Family Way’ (1995) Solicitors Gazette, 22 February, 8 at 31. Family law as a specialist academic subject is also a relatively recent development, its birth being located in the 1960s: see S Jolly ‘Family Law’ in P Thomas (ed) Socio-Legal Studies (Aldershot: Dartmouth, 1997); M Freeman ‘Family Values and Family Justice’ (1997) 50 Current Legal Problems 315–359.
7. Now subsumed in the Advisory Board on Family Law.
8. Children Act Advisory Committee Annual Report 1992/3 (London: Lord Chancellor's Department, 1993) p 80. See also Annual Report 1991/2 (London: Lord Chancellor's Department, 1992) p 20.
9. See Children Act Advisory Committee Annual Report 1993/4 (London: Lord Chancellor's Department, 1994) pp 47–50.
10. ‘Standards of advice and advocacy in Children Act cases should, in any event, be improved by the development of the…franchising scheme, which aims to provide a quality assured service by solicitors’ (Children Act Advisory Committee Annual Report 1996-7 (London: Lord Chancellor's Department, 1997) p 17.
11. A message also given in its Annual Reports for 1993-94 (above n 9 at p 34) and 1994-95 (London: Lord Chancellor's Department, 1995) pp 31–32.
12. Above n 10 at p 18.
13. See Family Law Panel: Procedural Notes (London: Law Society, 1998).
14. See eg The Children Act Advisory Committee (above n 10) pp 16–17.
15. Advisory Board on Family Law 1st Annual Report 1997-8 (London: Lord Chancellor's Department, 1998) p 19.
16. See eg Dewar's review of the more important theoretical approaches (above n 1).
17. I am grateful to Jacqueline Priest for making available to me the research completed for the Family Law Section of the SPTL, which shows how modularisation has often led to there being more than one module about family law on offer to students. Many of the divisions of material made are somewhat artificial: some are labelled Family Law I and II; some are separate child law modules; others have more imaginative titles. Such changes have, I would argue, also intensified the trend to a more child-related family law.
18. Though the titles and coverage of modules helps create a concept of what family law is, these are often determined less by theoretical and pedagogical discussion than by factors such as staff availability, the number of hours and credits allowed for a module and university assessment requirements.
19. The Family Law Act 1996 indicates a similar conflation: many of the provisions in Parts I and II aim to encourage conflict-free divorce and harmonious post-separation parenting and yet are applicable to all divorcing spouses, with or without children.
20. Fricker lists four areas with which ‘most’ family litigation is concerned, three of these necessarily involve children (above n 3 at p 404).
21. Or, to amend the question posed by Ann Bottomley over a decade ago, ‘What is happening to family lawyers?’: A Bottomley ‘What is Happening to Family Law?’ in M Freeman (ed) The State, the Law and the Family, Critical Perspectives (London: Tavistock, 1984).
22. (1995) 1 FLR 456-457. Bundles were also discussed by the Court of Appeal Administration Committee of May 1998 and were an issue in Ata v American Express Bank Ltd (1998) Times, 26 June.
23. Nigel Shepherd, then chair of the SFLA, quoted in Bawdon, above n 6, at 8.
24. Fricker, above n 3, pp 403, 406, 412.
25. Above n 10, Annexe A at 21. It has been argued that the change of approach from an adversarial to a conciliatory one has been the legal profession's main response to the challenges to the centrality of lawyers in the divorce process and one in which the SFLA played a major role: see J Walker ‘Is There a Future for Divorce Lawyers?’ (1996) 10 Int J Law, Policy and the Family 52-73 at 61; B Neale and C Smart “Good” and “Bad” Lawyers? Struggling in the Shadow of the Law (1997) 19(4) J Social Welfare and Family Law 377-402 at 380. See, further, Conciliation Project Unit Report to the Lord Chancellor on the Cost and Effectiveness of Conciliation in England and Wales (University of Newcastle, 1989) paras 9.24-9.37 and J Walker, P McCarthy and N Timms Mediation: The Making and Remaking of Cooperative Relationships (University of Newcastle: Relate Centre for Family Studies, 1994) p 138.
26. Above n 13 p 4.
27. Walker, McCarthy and Timms, above n 25, p 131.
28. Based in London, it is an independent organisation, launched with the support of the Confederation of British Industry to promote ADR techniques and services. However, as Hanlon (above n 4) points out, there is now a clear difference of practice between large commercial firms with ‘organisational clients’ and other commercial law practices.
29. This is not to say that it is only in family law that practitioners require knowledge from other disciplines: the intellectual property lawyer must currently have knowledge about computer software, for example. My point is, rather, that family lawyers give such ‘non-law’ a very high priority.
30. Solicitors’ Family Law Association Guide to Good Practice for Solicitors Acting For Children (London: SFLA, 4th edn. 1997) p 3.
31. Ibid, p 7.
32. Fricker, above n 3, p 404.
33. Examples of such concepts can be found in s 1 of the Children Act 1989: the welfare principle, the no order principle and the idea that delay is prejudicial.
34. See D Wright “Code Rage” and the Emergency Toolkit (1997) 27 Fam Law 378 at 378.
35. R Bailey-Harris, R Davis, J Barron and J Peara Monitoring Private Law Applications Under the Children Act: Research Report to the Nuffield Foundation (Bristol University, 1998) p 29.
36. Fricker, above n 3, p 404.
37. For example, see Walker, McCarthy and Timms, above n 25.
38. G Davis Partisans and Mediators (Oxford: Clarendon Press, 1988); G Davis, S Cretney and J Collins Simple Quarrels (Oxford: Clarendon Press, 1994). See also L Neilson ‘Solicitors Contemplate Mediation - Lawyers Perceptions on the Role and Education of Mediators’ (1990) 4 Int J Law and the Family 235-269, which was based on an independent study using a postal questionnaire sent to SFLA solicitors in the Greater London area and resulting in responses from 152 solicitors.
39. Neale and Smart, above n 25, p 397, n 14.
40. Bailey-Harris, Davis, Barron, Peara, above n 35, ch 2.
41. We used the Law Society regional directories to obtain the category of solicitors from which we drew a random sample. Two criteria were that they worked in a firm which had claimed a family law specialism in that publication and that each individual solicitor had listed family as their first or second specialism.
42. Two solicitors found to be doing only care cases were not interviewed.
43. The Law Society Directory of Solicitors and Barristers (1994) suggests that 43% of firms had two to four partners.
44. ‘North’ and ‘South’: these were not areas used by the other research projects.
45. The amount of time spent on such work by individual solicitors was estimated by them as ranging from 15% to 100% of their professional working hours. Interestingly, the Law Society is normally requiring a ‘specialist’ family lawyer to have notched up only 350 chargeable hours of family law work each year in the three years before admission to the Family Law Panel (see Law Society, above n 13, p 3).
46. Thirty of the 36 had spent all the time since becoming qualified doing a significant amount of family work. The period of time since being admitted as a solicitor ranged from two to 33 years.
47. British Association of Lawyer Mediators.
48. Only three of the 36 solicitors were neither mediators nor members of SFLA and were also not on the Children Panel.
49. 56% of divorces in 1994 were to couples with children under 16: see J Haskey ‘Divorce Statistics’ (1996) 26 Fam Law 301.
50. Twenty-two were already franchised, four others were in firms that were being monitored for a grant of franchise and another was in the process of organising the application.
51. The franchised solicitors were asked, inter aha, what information they both gave and sought, their preferred strategies in relation to contact and residence disputes and what they believed constituted the welfare of the child in the circumstances with which they were dealing. The remaining solicitors were asked similar questions about their practice.
52. Walker, above n 25, p 64–65; Walker, McCarthy and Timms, above n 25, p 25.
53. P McCarthy and J Walker ‘Involvement of Lawyers in the Mediation Process’ (1996) 26 Fam Law 154–158.
54. Lord Chancellor's Department Looking to the Future: Mediation and the Ground for Divorce (Cmnd 2424) (London: HMSO, 1993); Lord Chancellor's Department Looking to the Future: Mediation and the Ground for Divorce (Cmnd 2799) (London: HMSO, 1995).
55. Neale and Smart, above n 25, pp 337–338, 380.
56. Respectively, Neale and Smart, above n 25; Davis, above n 38; Wright, above n 34, p 358.
57. M King ‘Being Sensible: Images and Practices of the New Family Lawyer’ (1999, forthcoming) J Social Policy.
58. Bailey-Harris, Davis, Barron and Peara, above n 35, p 28.
59. Above n 35, p 27.
60. King, above n 57.
61. Neale and Smart, above n 25, p 392. Such solicitor ‘negotiations’, as the Bristol researchers found, ‘creates an impression of solicitors acting in concert in the face of one (or two) difficult parents’: see Bailey-Harris, Davis, Barron and Peara, above n 35, p 29.
62. Bailey-Harris, Davis, Barron and Peara, above n 35, p 28.
63. Davis, Cretney and Collins, above n 38, p 259.
64. King, above n 51.
65. Bailey-Harris, Davis, Barron and Peara, above n 35, p 33.
66. Dewar, above n 1, p 485.
67. See M King and C Piper How the Law Thinks (Aldershot: Arena, 2nd edn, 1995).
68. King, above n 57.
69. For example, one of the Law Commissioners - then Professor Hoggett, now Mrs Justice Hale - said that parental responsibility was ‘the conceptual building block used throughout the [Act]’ (B Hoggett ‘The Children Bill: The Aim’ 19 Fam Law 217).
70. A Sherr, R Moorhead and A Paterson Transaction Criteria (Legal Aid Board, HMSO, 1992).
71. The Family Transaction Criteria, Issue 2 (the latest issue) includes two relevant questions in Part 4 (Residence and contact disputes): ‘144: Did the lawyer advise the client generally about parental responsibility? 145:…did the lawyer advise the client on the likely practical significance of the continuing parental responsibility of both parents?’ (Legal Aid Board, 1995, p 40). The wording of these particular criteria was the same in Issue 1.
72. The question in relation to the franchise criteria was ‘Can you tell me briefly what sort of things you say?’.
73. Law Commission Family Law, Review of Child Law Guardianship and Custody (Law Comm No 172) (London: HMSO, 1988) para 2.6.
74. See eg P Bromley and N Lowe Bromley's Family Law (London: Butterworths, 8th edn, 1992) pp 301–317.
75. The remaining solicitor defined the concept in relation to what it was not, that is ‘the old custody’.
76. Hoggett, above n 69, p 217.
77. Except for one interview, where time was at a premium, all solicitors who had stated a definition went on to focus on one or more of these aspects. Of the remaining solicitors all but three (one who was somewhat confused by the question and two who said they did not explain parental responsibility to married couples) concentrated without preamble on one or more of these aspects.
78. Eleven and ten solicitors respectively (16 solicitors in total) said they drew the equal (as between parents) and continuing (after divorce) aspects to the attention of divorcing parents.
79. In legal terms, parentage is not the same as parental responsibility and parental responsibility does not last for the life of parent or child (except in the case where the parent or child dies before the child reaches its majority).
80. Only five solicitors appeared to used the word ‘involvement’ solely and specifically in the context of making decisions or ‘action on important matters’.
81. Three more gave examples of, respectively, receiving school reports, ‘having information’ and ‘getting to parents evenings’, but as part of a list which includes decisions about medical treatment, the child's schooling, taking the child abroad and consent to marriage.
82. Twelve out of the 23 solicitors referring to decision-making.
83. Two of these solicitors and a further 11.
84. A ‘fact’ backed by case law but not the Act itself. See also M McLean and J Eekelaar The Parental Obligation (Oxford: Hart Publishing, 1997).
85. What I previously wrote about mediators could now apply to the family law specialist. To summarise: they endorse particular client problems and not others, they construct particular suggested arrangements as ‘good’ and not others, they refer to particular types of solutions as ‘the real solution’ and they do all this through a particular construction of parental responsibility: see C Piper The Responsible Parent (Hemel Hempstead: Harvester Wheatsheaf, 1993).
86. J Eekelaar ‘A Jurisdiction in Search of a Mission: Family Proceedings in England and Wales’ (1994) 57(6) MLR 839–858.
87. Department of Health (1989) paras 1.28 and 1.3.
88. Circular 65/1991, at paras 3 and 10 respectively.
89. A Conciliators Guide to the Children Act 1989 (undated) p 2. National Family Mediation (then the NFCC) is the umbrella organisation for independent out-of-court mediation services which is now part of the UK College of Mediators.
90. Above n 8 (1992), p 4.
91. Above n 89, p 1. This text also argued that conciliators are crucial because they ‘orchestrate a process that enables parents undergoing separation and divorce to realise in practice the principle of parental responsibility in relation to their children’ (p 1).
92. 1991, p 157.
93. Above n 92, p 163.
94. Walker, above n 25, p 5.
95. See Dewar, above n 1 pp 470–472.
96. Above n 86, p 404.
97. Bailey-Harris et al, above n 35.
98. The reference made by C McEwen, R Maiman and L Mather ‘Lawyers, Mediation and the Management of Divorce Practice’ (1994) 28(1) Law and Society Rev 149–186) to the ‘balancing act’ (that between giving legal advice and addressing non-law issues) ‘at the heart of divorce lawyers work’ can, on this basis, be criticised as setting up a false dichotomy.
99. See C Smart The Ties that Bind: Law, Marriage and the Reproduction of Patriarchal Relations (London: Routledge and Kegan Paul, 1984) p 165. A current example could be judicial legitimation of solicitor representation of a child in private law proceedings in only a narrow range of circumstances: see eg Re S (1993) 2 FLR 437.
100. Dewar, above n 1, p 484.
101. Above n 86, p 858.
102. Walker, for example, points out that solicitor acceptance of child focused mediation could be seen as part of a ‘deal’ struck by mediators to gain support and that ‘adversarial positioning’ has continued in relation to money and property and, as a result, ‘concepts such as fairness, justice and rights…are referred to in relation to finance and property’ (above n 25, pp 55–57). See also Davis et al, above n 38.
103. Quoted in S Cretney ‘Family Law - “A Bit of a Racket”?’ (1996) NLJ Practitioner 26 January, 91–95.
104. Above n 103, p 91.
105. I realise this is hardly a novel conclusion. Katherine O'Donovan started a chapter on ‘Family Law and Legal Theory’ with ‘The view that family law is not really law seems to be gaining credence’ (in W Twining (ed) Legal Theory and Common Law (Oxford: Blackwell, 1986)).
106. Hopefully, this process of questioning has already begun. A recent seminar organized by the National Council for Family Proceedings was entitled ‘Assumptions and Presumptions in Family Justice Thinking’ (Tavistock Centre, London, 9 December 1998).
107. See eg S Day Sclater and C Piper (eds) Undercurrents of Divorce (Aldershot: Ashgate, 1999).