In the last 18 months, the field of family law has gone through a period of unprecedented change. The COVID-19 pandemic has forced us to adapt to new technologies, remote and flexible means of working and perhaps most importantly, it has forced us to re-evaluate the path we advise our clients to take when embarking upon their separation.
There is also now much more awareness of the impact that we as individuals have on our society and in turn the impact that we as family lawyers have on separating couples and their families. For some time there has been a new breed of family lawyer developing; lawyers who recognise that it is not always in a client’s best interests to initiate court proceedings as a default starting position. Aside from the backlog in the court system driving practitioners away from court applications, going to court is increasingly seen as a last resort or only used in the event of a situation concerning a binary outcome. This thinking is bred from the understanding that any adversarial or badly handled case conduct decisions can be not only financially devastating for clients, but have wide-reaching ramifications upon a client’s or their children’s mental health or wellbeing – signs of which for children can present well into adulthood and generally, in turn, have an impact on their own relationships and parenting.
So, what does a modern family lawyer look like?
The modern family lawyer responds to the needs of the modern family law client. In the last 20 years clients have become better educated about the law and their rights, more price conscious and technology has impacted virtually every aspect of their lives.
As a result the modern family lawyer has to keep pace with change – finding innovative ways to help clients to understand the law and the case strategies we recommend as well as help them consider the myriad non-court based options for dispute resolution; we manage the client’s legal fees budgeting (and often funding) every bit as much as our colleagues in corporate teams that have to negotiate with GCs on each and every project; and we must never stand still in the technological race.
Initially, technological change was all about delivering efficiency within the law office – not a place historically recognised for its forward-thinking practices. Now, it’s also about collaboration – with our clients, with other lawyers and with courts and other agencies. How are we doing with that as we embark on the journey of the post-Covid world?
Although, sadly, there appears to have been a steady rise in private law Children Act applications over the last seven years, primarily because of legal aid cuts and more parents representing themselves in proceedings, the statistics in relation to financial remedy applications makes for better reading. In the last 10 – 11 years (save for a slight uptick in 2016 and 2017) there has been a noticeable downward trend in the number of applications being made to the family court to determine financial remedy applications. This is not surprising given the profession’s drive towards private alternatives. Perhaps, one indicator of the success of this drive is in the number of specialist lawyers who now decline instructions for court-based disputes.
In navigating the pandemic, family lawyers have very quickly adapted to the use of technology in all methods of court based solutions and ADR. Separating couples are no longer routinely forced to come face to face with each other in the court’s waiting room even for the shortest of hearings.
Though most people prefer to meet their solicitor in person, people’s choices have opened up such that their solicitor, barrister or mediator might well be located in another part of the country – or, in some cases, even abroad.
Not only are we all now completely comfortable with Zoom and the court’s Cloud Video Platform but we are also coming up with alternative methods of communicating with our clients to provide a more modern and streamlined service.
While we should all be mindful to safeguard our own mental health and wellbeing, and not fall into the trap of offering a complete round the clock service, both our profession and our clients are generally working more flexibly, which allows all involved to weave in their legal proceedings to other family commitments. In a time in a client’s life fraught with emotion, when individuals sometimes act on impulse and out of a raw desire to feel like they are the one that has come out on top, our input in managing their expectations and emotions is more important than ever; agility, flexibility and modern communication is a crucial part of that piece of the jigsaw puzzle.
On a wider level, the law itself must continue to respond to the needs and challenges of families in the 21st century. The role of trade bodies, such as Resolution, are more important than ever in setting standards and driving change. Without a doubt, one of Resolution’s biggest achievements is its role in the introduction of the no-fault divorce legislation which comes into effect in the autumn. Thanks to this much overdue reform, that all important first meeting with a family solicitor as well as the first contact with the other spouse, need no longer be inherently adversarial. In itself, that will enable so many more of our clients’ post-separation dialogue to start off on a much more constructive footing. The new Domestic Abuse Act 2021 represents a similarly important step in combatting one of the most troubling of social ills.
But it must not stop there. Statutory reform in the family law sector has always been something the governments of the UK have been reticent to change, but the legal profession must continue to be an agent for change.
So, as we now navigate our way out of the pandemic to a more hybrid form of working, it is clear that we must continue to build on all these positives for the sake of our clients and their children. We must not lose sight of the fact that we, as a profession, as well as our representatives in parliament all have a fundamental role to play in affecting how these separating families relate to each other once our work is complete.
Alex Davies & Camilla Hooper, family law experts at Cripps Pemberton Greenish