THE LAW Society has launched a new code of practice for family law, which says that solicitors should fulfil their duties mindful of the best interests of the family as a whole and of the children in particular.
The code of practice is not legally binding, according to the society’s director general, Ken Murphy, but breach of it could amount to misconduct if it was serious and had serious consequences for the client, depending on the facts of the case.
It would be up to the Solicitors Disciplinary Tribunal to decide how far short of the required standard the conduct might fall.
The code of practice stresses that solicitors should advise, negotiate and conduct matters so as to help the parties settle their differences as speedily and amicably as possible. “You should encourage the attitude that the dispute is not a contest in which there is a winner and a loser, but rather that it is a search for fair solutions,” it states.
Solicitors should avoid inflaming the dispute, and consider the effect all correspondence could have on other parties and on their own clients.
Issues relating to children and finance should be kept separate where possible, it states. The client should be told that the welfare and interests of the child are paramount, and solicitors must also be aware that the interests of the child and those of their client may not always coincide. The other party’s strengths as a parent should be stressed.
The code also deals with representing both parents and children in public law cases, where care orders are concerned. Solicitors should not see children unless they are acting for the child, and the views of children should be taken into account by the court, depending on the age and maturity of the child.
In dealing with clients, solicitors should explain all options, including assisting them to access various forms of alternative dispute resolution. The client must understand the consequences of any decision he or she makes, and should be made aware at all stages of the costs. The benefits and merits of steps taken must be balanced against the costs at all stages of the process. Clients must be informed of their obligations to make full financial disclosure in family law proceedings, and of the consequences of failure to do so.
In dealing with colleagues, solicitors should avoid emphasising past difficulties or expressing opinions as to the conduct of the other party. They should remain detached and avoid confrontational language which may further exacerbate conflict.
Special care should be taken to communicate clearly with lay litigants, it states. They should be urged to consult a solicitor and informed of their entitlements under legal aid.
Introducing the code, Mrs Justice Catherine McGuinness pointed to the special position of the family in the Constitution and the need for all involved in family law to have regard to the best interests of the family as a whole, and in particular to the children.
“Litigation concerning children should never be treated as a battlefield,” she said. “The casualties in such a contest can only be the children.”