THE LAW SOCIETY’S FAMILY LAW PROTOCOL PART 1 2006 THE MAIN PROTOCOL*

1.1 The First Meeting

1.1.1 Solicitors are reminded that the Civil Partnership Act 2004 will come [came] into force on 5 December 2005. The Act will give same sex couples the opportunity to register their relationships and thereby acquire rights and responsibilities almost entirely analogous to those of married couples. Any reference to marriage, unless the contrary is expressly stated, should be taken to refer also to civil partnership, while reference to spouse should be construed as referring also to a civil partner unless this is specifically excluded.

1.1.2 Solicitors are reminded that they must identify their clients in accordance with the requirements of the Money Laundering Regulations 2005. Clients should be asked to bring two forms of appropriate identification to the first meeting. The Law Society’s guidance to the Proceeds of Crime Act 2002 and the Money laundering Regulations 2003 can be found on the Society’s web site at www.lawsociety.org.uk/professional/conduct/guideonline.law as new Annex 3B.

1.1.3 In all family law matters it is important that at the first meeting or early in the case, solicitors should consider certain matters as follows.

Reconciliation

1.1.4 When instructed by clients facing family breakdown the first step (unless it is clearly inappropriate to do so) is to discuss with clients whether the relationship is over or whether there is a possibility of saving the relationship.

1.1.5 In cases where recent or serious domestic abuse or any other form of abuse is alleged, the question of whether a relationship or marriage can be saved is rarely an appropriate question to ask clients, especially if they are from backgrounds in which they have already been placed under pressure to save their marriage. It is more appropriate to inform such clients as to their rights in civil law so that they can make an informed choice.

1.1.6 Solicitors must keep an up-to-date list of referral agencies including local marriage guidance agencies, counsellors, Relate, etc and refer clients to them where appropriate. Solicitors need to bear in mind their clients’ ethnic, cultural and/or religious background when considering referral agencies and should be aware of the benefits of referring clients to agencies with knowledge of their particular background.

1.1.7 The prospect of saving the relationship and/or the benefits of support groups or family, personal or relationship counselling should be kept under review throughout the case.

1.1.8 However, solicitors must consider carefully whether family support networks are beneficial where members of minority backgrounds are concerned. Many clients from minority backgrounds face acute pressures from members of their extended families to save their marriages. Wider family networks, and even the community to which they belong may add to the pressures on the clients. It is therefore important to bear in mind such difficulties when advising.

Other support services

1.1.9 Solicitors should be aware of any support services (for example debt counsellors, contact centres, Citizens Advice Bureaux, organisations for persons with addictions and/or their families). These can assist clients in coming to terms with problems which underlie their relationship breakdown, or have come about as a result of that breakdown. Solicitors should advise clients of the existence of these organisations and encourage clients to use their services when appropriate. 

Professionals who have a dispute resolution degree can help advise and offer more support.

Interpreters

1.1.10 Where English is not a client’s first language, solicitors should always consider whether an interpreter should be present throughout an interview. Solicitors should consider whether they can act for a client when they do not speak the language of the client and no interpreter is available. Solicitors should be aware that it is generally inappropriate to use family members, especially children as interpreters. This is most important in cases where domestic abuse is alleged but should be seen as a general rule. There will also be some cases in which a client may be unwilling for a member of their community to act as an interpreter and solicitors should abide by this decision.

1.1.11 Solicitors should not make assumptions about which language and dialect is required and should ensure that the services of the correct interpreter are sought. Interpreters must be independent and non-judgemental and solicitors should ensure that interpreters know that their role is limited to interpreting exactly what is said. Clients seeking advice must feel confident that their solicitor and interpreter are acting in their interests alone and that the facts of their case are confidential. It is preferable where possible to use an interpreter of the same sex as the client.

Family dispute resolution

1.1.12 If reconciliation appears to be unlikely, there are a number of ways to resolve disputes arising from family breakdown. When first instructed by clients, solicitors must:

• a.Explore carefully clients’ legal needs and establish exactly what clients are trying to achieve.
• b.Establish whether clients’ circumstances might affect the choice of a resolution procedure, for example cost or accessibility.
• c.Consider the most appropriate form or forms of dispute resolution for the case or for individual parts of the case and keep them under review throughout the case. In cases where domestic abuse is alleged, the safety of the victim and any children is a prime concern and any proposed form of dispute resolution should always be viewed in the context of safety and protection. Victims of domestic abuse should not be pressurised to meet with their violent partner in an attempt to reach an agreement.
• d.Consider whether, and if so how vulnerable clients and clients under a disability within the meaning of Part IX Family Proceeding Rules (FPR) 1991, SI 1991/1247 can engage in family dispute resolution.

1.1.13 The four most commonly used forms of dispute resolution in family cases are:

• a.Agreement between the parties.
• b.Negotiation between solicitors, including meetings between solicitors acting for each of the parties and their clients where appropriate.
• c.Mediation or other forms of alternative dispute resolution (ADR).
• d.Court based conciliation.
• e.Adjudication by the court.

They are often used in combination.

1.1.14 Solicitors must ensure that clients are aware that in financial matters an agreement must be embodied in a consent order to be directly binding on the other party.

1.1.15 Solicitors must:

• a.At an early stage unless it is clearly inappropriate to do so, explain the mediation process and advise clients on the benefits and/or limitations of mediation in their particular case, as well as the role of the solicitor in supporting the mediation process.
• b.Keep the suitability of mediation under review throughout the case.
• c.Encourage clients to go to mediation when and where appropriate, providing it is safe to do so.

Domestic abuse

1.1.16 Solicitors must be aware of the widespread incidence of domestic abuse and the remedies available. Information and best practice guidance (including a definition of domestic abuse, the meaning of screening, needs assessment and safety planning) is provided in Part 4. Solicitors must:

• a.Treat the safety of clients and any children as a priority.
• b.Screen appropriately for domestic abuse.
• c.Where domestic abuse is not revealed at the first meeting, continue to keep the possibility of it under review, remembering that is can affect both men and women and can occur in all manner of family relationships and can cause harm to children who witness violence or are abused themselves.
• d.When domestic abuse is disclosed, undertake a needs and risk assessment and safety planning with clients; the appropriate remedy for each client’s individual needs must be discussed and kept under review. Solicitors may wish to make referrals to local domestic abuse services or advise clients of advocacy and support services available, including refuges. Solicitors should ensure that clients are aware of the crossover between domestic abuse and child protection issues. Solicitors should also be aware of the effect of the Domestic Violence, Crime and Victims Act 2004 in this area and its potential impact upon choice of remedy.

Urgent issues

1.1.17 Solicitors need to establish the basic facts of a case, establish whether there are any urgent issues in addition to those mentioned above and advise on how it is appropriate to deal with them.

1.1.18 Examples of issues that may require consideration at any early stage are:

• a.The need to establish whether any without notice orders are needed.
• b.The need to consider whether there is a risk that a child may be removed from England and Wales with the knowledge or consent of the client.
• c.The need to establish whether there are any relevant criminal proceedings pending (in which a client may be a complainant, a witness or a defendant).
• d.The need of interim maintenance to be agreed or applied for.
• e.Whether maintenance for children can be agreed or whether reference to the Child Support Agency (CSA) should be made.
• f.The need for clients to be advised about welfare benefits.
• g.The immediate housing needs of clients and any relevant children.
• h.Severance of a joint tenancy of a family house.
• i.Registration of rights of occupation of a family home. Solicitors should advise clients that owners of property are now notified by the Land Registry if a matrimonial home notice of caution is placed on their property.
• j.The need to make/revise wills, bearing in mind the intestacy rules, the effect of divorce on wills and the possibility of appointing testamentary guardians.
• k.The need to limit access to credit cards.
• l.The need to close or freeze joint accounts or to make them joint signatory accounts.
• m.The need to limit draw down facilities on existing loans and mortgages which secure future loans by either party.
• n.The consideration of nominations for death in service benefits.
• o.The need for transfer of assets between spouses in the fiscal year of separation in order to defer capital gains tax liability.
• p.The need to consider an application under the Matrimonial Causes Act 1973, s37 to prevent either the dissipation of assets or the giving of notice to quit by one of two joint names.
• q.The need to consider whether a ‘race’ to issue a petition in a particular jurisdiction (following EU Council Regulations (EC) 2201/2003, ‘the revised Brussels II’) is being undertaken by the parties.
• r.The need to consider immigration and asylum issues. Family lawyers should be aware that this is a complex and fast changing area of law and that immigration status can impact directly on the rights of a client in respect of their options for safety and protection. Appropriate advice should be sought from an immigration specialist if necessary.

Children

1.1.19 In any case where the parties have dependent children, solicitors should exercise particular care, even where there is no apparent dispute between the parents of the child or children. If there are child protection issues, whether arising from domestic abuse, child abduction or any other matters, the safety and welfare of the children should be treated as paramount.

1.1.20 In all children matters it is important for solicitors to bear in mind and to emphasise to clients, throughout the case, the continuing nature of the relationship of parent and child and the benefits that co-operation between the parents and recognition of each parent’s continuing role brings to the children. Solicitors should emphasise to clients the importance of shielding children from criticism of the other parent.

1.1.21 When dealing with questions in respect of the upbringing of a child solicitors always need to remember that the child’s welfare is the court’s paramount consideration (Children Act 1989, sl (1) as reinforced by the revised definition of harm in Adoption and Children Act 2002, S120). This amends the Children Act 1989 definition of harm to include ‘impairment suffered from seeing or hearing the ill-treatment of another’. Accordingly, when acting for parents, solicitors must be prepared to advise their clients that the court will be approaching the matter from the viewpoint of what is best for the child and that this can override the wishes of either clients or children or both.

1.1.22 Solicitors should warn clients about the potentially damaging effects of involving their children in any ongoing family disputes. There are particular risks of harm to the children, in both the short and the long term, and continuing conflict, where they are encouraged to take sides or become involved in their parents’ disputes.

1.1.23 The Home Office published a document in 2004 entitled Tackling domestic violence; providing support for children who have witnessed domestic violence, (www.homeoffice.gov.uk/rds/pdfs04/dpr33.pdf) This gives practical advice and information on domestic abuse and children and may be of use to solicitors and clients.

1.1.24 Solicitors should make clients aware that negotiations in relation to children are separate from negotiations on other disputes that they may have with the other parent. Correspondence relating to children in particular should be separate from correspondence relating to financial and other aspects, or at least shown under separate headings. Clients should be made aware that the courts treat issues concerning children separately and independently from money issues, even if they relate to children.

1.1.25 Solicitors should use their best efforts to dissuade clients from making applications in respect of children when it is apparent that the applications are motivated by intentions other than consideration for the children’s welfare. Examples are applications for contact or residence made from spite, from a wish to ‘teach the other party a lesson’, from a desire to track down or continue the abuse of victims of domestic abuse and their children, or from a perception that this would improve financial claims. Likewise, solicitors should attempt to dissuade parents from opposing an application for such reasons while being aware that victims of domestic abuse may have good reason for opposing contact arrangements with a violent parent that they (and sometimes their children) consider to be unsafe for the child.

1.1.26 It is recognised that the Child Support (Maintenance Assessments and Special Cases) regulations 1992, SI 1992/1815 (which provide for levels of child maintenance to be reduced by a specific proportions in the number of nights that the children are with the non-resident parent) may cause particular difficulty in contact cases. Clients should be advised that the law relating to contact is separate and distinct from child support. Clients with residence should be discouraged from applying for increased contact when the prime purpose is to affect payment of child support.

1.1.27 Solicitors should encourage clients to consider what, when and how they intend to tell their children about a parental separation and to consider doing so with the other parent where it is safe to do so. In difficult cases couples may find that mediations or counselling on this single issue can be helpful although public funding for mediation is not available unless there is a potential dispute.

1.1.28 Solicitors need to be aware that under the Adoption and Children Act 2002, Sill which came into force on 1 December 2003, unmarried fathers will obtain Parental Responsibility automatically if they have registered the birth of a child after that date jointly with the child’s mother. Accordingly, where the birth has been registered after that date it will be necessary to check the full birth certificate so that the position can be established. The Act is not retrospective and thus does not apply to births registered before that date.

1.1.29 Unmarried fathers whose names are not shown on birth certificate and whose children’s births were registered prior to 1 December 2003 can re-register the birth jointly with the mother and so obtain parental responsibility. However, fathers whose names are already shown on the birth certificate cannot reregister, and therefore cannot obtain parental responsibility by this method.

1.1.30 Solicitors should discuss with unmarried parents whether or not it is appropriate to enter into a parental responsibility agreement to seek a parental responsibility order, and/or make a will to appoint a testamentary guardian.

1.1.31 Solicitors should be aware of the potential benefits of a parenting plan and should consider their use from the outset. Parenting plans are available from the Department for Constitutional Affairs (DCA) on their website at www.dca.gov.uk/family/divleaf.htm or from county courts and magistrates’ courts dealing with family matters, solicitors’ offices, mediation services, CAFCASS office, and many voluntary organisations working directly with children. At the time of writing the parenting plan material is being revised by the Department for Education and Skills and solicitors should be alert to the availability of a new guide and planner in due course.

1.1.32 During the case relating to children, solicitors should be sensitive to suggestions from clients that a child is showing any signs of serious emotional disturbance. Solicitors should refer where appropriate to other agencies that may be able to assist, for example the child’s school, GP, health visitor or any other health care professional, a counsellor or any other agency that may be able to assist. Solicitors should be in possession of the names and addresses of any local referral agencies.

1.1.33 Since 1 March 2005 solicitors must consider whether England and Wales is the habitual residence of the parties (or the child if there are child matters to be resolved) for the purposes of EU Council Regulation (EC) 2201.2003. A country might have jurisdiction on the divorce but not on children issues.

Clients under a disability

1.1.34 Solicitors must bear in mind that they cannot be retained by clients incapable of giving instructions (The Guide to Professional Conduct of Solicitors 1999, Principe 24.04). Incapacity includes those of a young age or those with learning disabilities, mental health problems, brain damage (including dementia) or any combination of these characteristics. A solicitor consulted by a client who cannot give instructions must identify a willing and suitable next friend or guardian ad litem to conduct any litigation (Family Proceeding Rules (FPR) 1991, SI 1991/1247, Rule 9.2). The Official Solicitor will act in the absence of anyone else willing and suitable. (Practice Note, Official Solicitor; Appointment in Family proceedings [2001] 2 FLR 155.)

1.1.35 Equally, solicitors must be alert to any information that the other party may be under a disability and in need of a next friend or guardians ad liteum. There are specific rules about service of a petition on a person under a disability (FPR 1991, Rule 9.3).

1.1.36 If a solicitor is in any doubt about whether a client (or the other party) is a patient for the purposes of FPR 1991 rule 9.1 the Official Solicitor can provide a standard medical certificate to be completed by the person’s medical attendant.

1.1.37 Solicitors are reminded that when instructing an expert to advise on capacity to conduct litigation it is the solicitor’s responsibility to ensure that the expert is given the appropriate guidance as to the legal test. As part of that guidance the expert’s attention should be drawn to the fact that the test for capacity is issue-specific. The expert should be provided with a description of the litigation in respect of which they are being asked to assess the client’s litigation capacity, including a description of the issues which the client will be expected to understand and the decisions that will be required.

1.1.38 An application to the court for the appointment of a guardian ad litem or next friend pursuant to FPR 1991, rule 9.2 should be made at the earliest possible opportunity upon receipt of medical evidence confirming the client’s incapacity.

1.1.39 In the event that such medical evidence is inconclusive or the solicitor has difficulties in obtaining such medical evidence, then the matter ought to be referred to the court for directions. Solicitors should bear in mind that they may be personally liable for costs purporting to act without authority on behalf of a person under disability, whether or not that disability has been established by medical evidence (Yonge v Toynbee [1910] 1KB 215).

The initial letter of retainer

1.1.40 At the commencement of every case solicitors should send to clients a letter of retainer confirming their instructions, the extent of their retainer and any limits placed upon them by clients. They should ensure that clients verify that the letters reflect accurately the instructions given, and should normally be sent to the client following the first meeting.

1.1.41 Solicitors must warn clients of their duties under the Proceeds of Crime Act 2002 and the Money Laundering Regulations 2003, and solicitors’ duties of disclosure of their clients’ affairs and/or their opponents’ affairs. Solicitors must be aware of the effect of the judgement in Bowman and Fels [2005] EWCA Civ 226 and its effect on the duty to report.

1.1.42 If at any time during the conduct of cases a client decides to ignore advice given by a solicitor, or to act in a way that the solicitor considers to be unwise or detrimental to that client’s interests, the solicitor must write to the client expressing these concerns and the consequences of the action proposed by the client. In publicly funded cases solicitors should also consider costs.

Provision on information

1.1.43 At the first meeting or immediately thereafter, solicitors should consider what standard information clients might find helpful. In particular, solicitors should consider giving clients leaflets on matters relating to their particular dispute (see the Law Society’s website at www.lawsociety.org.uk or Appendix 5 for details of professional ethics) or alternatively should at least make clients aware if such leaflets are available. Solicitors should also be aware that other organisations publish leaflets relevant to family matters. These include Resolution (formerly the Solicitors’ Family Law Association).

Advising on outcomes

1.1.44 At the end of the first meeting or at an early stage thereafter, solicitors should outline possible outcomes to clients in writing as far as this is practicable on the information available. It is recognised that in cases where there has been little or no disclosure this outline will need to be very broad and this needs to be explained to clients. It is important that clients are not given unrealistic expectations; either of what can be achieved or of the time a matter may take to resolve.

1.2 Cost information

Introduction

1.2.1 Whether clients are privately or publicly funded, solicitors are reminded of their obligation to comply with the Solicitors’ Costs Information and Client Care Code 1999 (Solicitors’ Practice Rules 1990, Rule 15). A serious breach of the Code, or persistent breaches of a material nature, could be treated as professional misconduct and/or inadequate professional services. Breaches, which create prejudice for the other party or for the court, could result in cost penalties.

1.2.2 In particular, in accordance with the Code, solicitors must:

• a.Give clients the best information possible about the likely overall costs, including a breakdown between fees, VAT and disbursements (it is recognised that in family law matters such an estimate may need to be in broad terms at the commencement of a case).
• b.Discuss with clients how, when and by whom any costs are to be met and consider whether clients may be eligible for public funding.
• c.Discuss with clients, and keep in mind at all times, the principle of proportionality between the likely outcome and the probable expense of resolving the dispute, having regard also to the impact of any possible costs order.
• d.Keep clients regularly updated about the level of costs.

Availability of public funding

1.2.3 Solicitors are reminded of their professional duty to consider and advise clients on the availability of public funding where clients might be entitled to such assistance. Accordingly solicitors should be aware of the levels of eligibility for public funding. Although solicitors can discuss alternative methods of funding, if clients may be eligible this should be explained to them and they must be given the opportunity of applying for public funding. The availability of public funding must be kept under review throughout the matter.

1.2.4 In discussing the availability of public funding, solicitors must explain to clients the effects of the statutory charge, the possibility of contributions, the reporting and mediation requirements of public funding and the costs protection that being publicly funded may provide in some cases. Solicitors must, however, be aware that costs protection does not apply to certificates granted and amendments made to add new proceedings to an existing certificate, on or after 25 July 2005. Solicitors therefore need to be particularly aware of the need to advise clients of the risk of an adverse order being made. Costs protection no longer applies to all proceedings under any one or more of the following:

• Matrimonial Causes Act 1973;
• Domestic Proceedings and Magistrates Courts Act 1978;
• Matrimonial and Family Proceedings Act 1985;
• Children Act 1989 parts I and II and Schedule 1;
• Family Law Act 1996 s53 and Schedule 7.

Also proceedings which arise out of family relationships under either or both of the following:

• Inheritance (Provision for Family and Dependants) Act 1975;
• Trusts of Land and Appointment of Trustees Act 1996.

1.2.5 If clients who may be eligible for public funding, whether at the outset of a case or at any time during it have consulted solicitors who do not undertake publicly funded work, they must be given the option of being referred to solicitors who do carry out publicly funded work (even if this means referring clients to another firm). If clients eligible for public funding nevertheless wish to continue to instruct their original solicitors on a privately funded basis, the availability of public funding and their decision not to apply for it should be confirmed to clients in writing.

The requirements of public funding

1.2.6 When clients are publicly funded, solicitors need to be aware of the requirements of public funding. In particular, make clients aware of the statutory charge, so as to ensure that clients are aware that there are circumstances in which solicitors’ duties under publicly funded work can override their duty of client confidentiality. The solicitor is required to make a report to the Legal Services Commission, for example where there is a belief that the publicly funded client requires the case to be conducted at an unreasonable or at an unjustifiable expense to the Community Legal Service Fund or where the solicitor is simply uncertain as to whether it would be reasonable to continue acting. A costs officer is entitled to disallow all subsequent costs following a failure report and it is important that the client should be aware of this. In client confidentiality, solicitors are referred to Regulation 4 of the Legal Services Commission (Disclosure of Information) Regulations 2000/442 (see 1B-76 in the Legal Services Manual, volume 1) and Principle 5.03 of the Guide to the Professional Conduct of Solicitors 1999.

1.2.7 Solicitors are reminded of their duty to safeguard public funds and to ensure that the funding code criteria applicable to the case remain satisfied. Solicitors must ensure that they file and serve Notice of Issue of a Certificate of Public Funding and Notice of Discharge of that Certificate.

The statutory charge under public funding

1.2.8 Solicitors should consider and discuss with the client, where appropriate, the application of the statutory charges in cases which may result in the recovery or preservation of the possession of property (for example, the protection of a right of occupation of property or the unlocking of the value of property). Such cases can give rise to the statutory charge, even where the title to the property is not in issue (Parkes v Legal Aid Board (1994) 2 FLR 850). Solicitors should remember that the charge does now apply where property is recovered or preserved for the benefit of a third party, such as a child, and may do so even where the case was funded under the legal Aid Act 1988.

1.2.9 Solicitors should be aware that the statutory charge arises where property, which was at issue, is recovered or preserved. Where the parties have been able to agree throughout on the disposition of an item of property, the charge cannot attach to it. Solicitors should endeavour to narrow the subject matter of the dispute.

1.2.10 Solicitors should consider and discuss with the client, where appropriate, the possibility of postponement of the statutory charge where property, which is to be used as the client’s home is recovered or preserved – including under the Trusts of land and Appointment of Trustees Act 1996. It should be borne in mind that where the necessary conditions are met, including the payment of interest, the statutory charge over the property can be postponed until future sale and transferred onto the purchase of a new property from the proceeds indefinitely, ultimately reverting to the recipient’s estate.

Costs orders

1.2.11 Solicitors must consider and explain to clients the factors which may affect the court in considering costs, including:

• 1.The conduct of litigation, for example material non-disclosure of documents and delay in seeking disclosure.
• 2.The absence of an offer or a counter-offer or an offer made too late to be effective.
• 3.The reasonableness of any offer or counter-offer since unreasonable offers are not helpful and will not be viewed as such by the court.
• 4.Solicitors should consider and discuss with the client the costs and implications of the provisions of the Family Proceedings Rules 1991 dealing with offers for settlement as set out at FPR 1991, Rule 2.69(a)-(h) inclusive. Solicitors should remember that the specific costs implications of Rule 2.69(b) and (c) apply only in respect of ‘without prejudice’ offers and consideration should always therefore be given as to whether an offer should be an open one or made without prejudice. Solicitors should remember, too, that the costs implications apply, not when beating one’s own offer, but when beating the offer made by the other party. The potentially heavy costs and interest penalty which may flow if the final order is more advantageous to one party than either that party’s offer or the offer of the other party should also be noted.
• 5.In considering the implications of FPR 1991, Rule 2.69, clients should also be made aware that they could be penalised in costs, for an unreasonable failure to:
  • a.make a timely and effective offer;
  • b.respond to an offer;
  • c.make a counter offer.
• 6.Solicitors are reminded of their obligation to provide costs estimates to the court in Form H as to the total costs incurred up to the date of the relevant hearing. In preparing such estimates, they should have regard to Section 6.5 of the CPR Costs Practice Direction, which provides that the amount of an estimate is a factor which may be taken into consideration on a detailed assessment of costs by a costs officer.

Instructing counsel

1.2.13 If solicitors propose to instruct counsel in respect of any aspect of the work on the case, the costs implications of doing so must be explained to the client and authority to instruct counsel secured from the client. The following points should also be kept in mind.

• 1.In ancillary relief proceedings, an estimate of costs to date should be provided to counsel at all stages.
• 2.In private paying cases, the solicitor should ensure that he or she has appropriate security for counsel’s fees, remembering the personal obligation to be responsible for payment of the fees of counsel.
• 3.The solicitor should remember that he or she has a duty to the client to negotiate with counsel’s clerk to ensure that counsel’s fees are fair and reasonable. The solicitor should seek the client’s approval before concluding an agreement as to fees.
• 4.In publicly funded cases, solicitors should be aware that the level of counsel’s fees will impact upon any costs limitation and solicitors may need to provide verification to the Legal Service Commission of the work done by counsel to support a claim for fees under the Graduated Fee Scheme.
• 5.Whenever counsel is to appear as an advocate on behalf of the client, the client must be aware, save in exceptional circumstances, of the identity of the barrister concerned and what arrangements are being made for the attendance by any representative of the solicitor with counsel.

1.3. Communication with the other party and with the client

1.3.1 Solicitors and parties where unrepresented must show courtesy and solicitors must be professional in all communications with other solicitors or parties. Solicitors should not give personal opinions or comments within letters. Solicitors are referred to the SFLA’s Guide to good practice on correspondence obtainable from the Solicitors’ Family Law Association 9, see Appendix 5 for contact details.

1.3.2 Communications must focus on identification of issues and their resolution. They should be clear and free of jargon. Protracted, unnecessary, hostile and inflammatory exchanges and ‘trial by correspondence’ upon clients and other family members should be considered so that correspondence sent by solicitors does not further inflame emotions or antagonise.

1.3.3 The impact of any correspondence upon its readers and in particular the parties must always be considered. It is crucial that solicitors or parties do not raise irrelevant issues nor unreasonably cause other parties or their own clients to adopt an entrenched, polarised or hostile position.

1.3.4 Solicitors should consider, where possible, sending any substantive items of correspondence to clients for checking initially, particularly if that correspondence contains proposals for settlement. They should send copies of all but routine letters to their clients as a matter of course, unless there is specific reason not to do so. Clients’ circumstances are so varied that it would be difficult to prepare a specimen first letter to the other party. However, the tone of the initial letter is important. It should briefly address the issues and avoid protracted, clearly one-sided and unnecessary arguments or assertions. In drafting the first letter, solicitors must do the following.

• Where practicable, obtain approval from clients in advance.
• Where writing to unrepresented parties, recommend that they seek independent legal advice, and enclose a second copy of the letter to be passed to any solicitor instructed.
• Solicitors are warned that they should not use e-mail as a sole means of correspondence with other solicitors and of the danger of sending e-mail correspondence to a client whose spouse or partner might know and use their e-mail password. E-mail should not be used to correspond with clients unless the client has given express assurance that it is a suitable means of correspondence. Solicitors are advised to consult the Law Society’s Guidance for solicitors on the use of electronic mail (April 2000) and Professional ethics and IT (June 2000). These are both available from Professional Ethics on 0870 606 2577

1.4 Giving notice of proceedings

1.4.1 Prior to the issue of proceedings of any nature, solicitors acting for applicants or petitioners should notify those acting for respondents (or respondents where unrepresented) of the intention to commence proceedings at least seven days in advance, unless there is good reason not to do so. It is bad practice for proposed respondents then to issue proceedings to pre-empt proposed petitioners issuing, unless a good reason for doing so exists. If respondents nevertheless instruct their solicitors to issue proceedings, their solicitors must warn them of the court’s disapproval of such action, the possible costs implications and the impact of such action on the rest of the case (see the SFLA’s Guide to good practice on service, obtainable from the SFLA and Appendix 5 for contact details).

1.5 Where the parties have already reached agreement

1.5.1 Separating couples may have reached an agreement on a matter prior to seeing solicitors. The agreement may have been reached in direct negotiation between the parties, in mediation or by some other method. In such circumstances solicitors should do the following.

• 1.Inform separating couples that they can only act for one party and that the other party should obtain independent legal advice.
• 2.When first instructed send to clients a letter setting out, in full, the terms of their retainer and the limits placed upon it by the client. The client should take particular care in confirming in writing any limits placed on the retainer. Any modification of the retainer at a later stage should also be notified to the client in writing.
• 3.Establish that the client fully understands the terms and effect of the agreement and the alternative options available.
• 4.Establish whether the agreement has been reached on the basis of full and frank disclosure and emphasise the dangers of incomplete disclosure (this is of particular importance in financial matters and a clear warning should be given to clients of the consequences of the making of financial orders).
• 5.Discuss with the client any omissions or points that need clarifying.
• 6.Advise the client on the implications of the agreements reached and whether it is in the client’s best interest, both the short term and the long term. This includes, where appropriate, advising on other options available. In doing this solicitors need to bear in mind all the implications including the benefits attached to reaching a settlement on an amicable basis and the cost, risks and time involved in further negotiations, mediation or litigation (especially if the agreement is within the range that the court might order).
• 7.Solicitors should consider sending a disclaimer letter to the client for signature and return by the client in cases where the solicitor is concerned that there is inadequate disclosure or a clearly inadequate settlement. In the event that the client refuses to sign such a disclaimer letter, solicitors might consider whether this gives grounds for termination of retainer (see principle 12.12 of the Guide to the Professional Conduct of Solicitors (1999)).

1.5.2 If solicitors consider that duress or undue influence has been brought to bear on their clients to enter an agreement that is unreasonable or unfair, they should tell clients and advise them in writing to review the agreement. If the client refuses to do so then the solicitor should have regard to Principle 12.04 of the Guide to the Professional Conduct of Solicitors (1999) which says: ‘a solicitor must not accept instructions which he or she suspects have been given by a client under duress or undue influence’.

1.5.3 Solicitors should advise clients on the most appropriate way to record the agreement and, as appropriate, draft and present to the court any necessary consent order or prepare any necessary agreement/documents.

1.5.4 When drafting financial consent order, solicitors should refer to the further guidance given in part IV, paras 16.1 – 16.6. Failure to advise fully and appropriately can result in negligence suits succeeding against the solicitors involved.

Criminal proceedings

1.6.1 In some cases, for example those where domestic abuse is disclosed, solicitors must be aware that criminal and civil law remedies may need to be used in conjunction with each other. Whether their client is the alleged victim or the alleged perpetrator in criminal proceedings, solicitors must be aware of the current status of those proceedings and any order made (particularly with regard to bail conditions), and consider how those proceedings might affect the civil/family proceedings and vice versa.

1.7 Human Rights

1.7.1 Solicitors must have knowledge of the Human Rights Act 1998, the Strasbourg jurisprudence and case law and must keep this knowledge up to date.

1.7.2 Solicitors should not use the Act inappropriately to bolster weak cases or to bring inappropriate points, but they must carefully consider, and keep under review, whether there is a general issue as to whether clients’ human rights have been breached. If so, solicitors should discuss with clients what further action should be taken. Solicitors should consider the content of the Practice Direction (Family Proceedings: Citation of Authorities) [2000] 4 All ER 288.

1.8 EU and other international law

1.8.1 Solicitors must be aware that EU law affects family proceedings in England and Wales and must ensure that they remain up to date with the latest developments in the area. If solicitors do not feel comfortable with dealing with cross-border issues or EU law that is applicable in a particular case, they should consider seeking guidance from another solicitor regularly practising in this area or consider passing the matter to them to handle completely.

1.9 Resolution code

1.9.1 Solicitors must comply with the rules contained in the Guide to the Professional Conduct of Solicitors (1999), including the Law Society’s anti discrimination Rules and the SLFA Code of Practice 9, see Appendix 2.

1.9.2 The SFLA publishes guidance notes on good practice, which are updated regularly and there is currently guidance on:

• service;
• correspondence;
• disclosure;
• acting for children;
• working the Bar;
• cases with an international element.

Copies are obtainable from the SFLA (see Appendix 5 for contact details). Solicitors should read and follow these guides.