The family law protocol 15 years on

Next year marks the 15th anniversary of the Law Society’s family law protocol. Family law, not to mention the protocol itself, has seen a good deal of change in that time.

I am the happy owner of each of the four editions of the protocol. The book has morphed from yellow, through shades of blue, to its current dark green. Each edition is well thumbed, being referred to by my team regularly.

In her foreword to the first edition in 2002, Dame Elizabeth Butler-Sloss, then president of the Family Division, congratulated the Law Society for producing the book which covered best practice in all aspects of family law disputes. Of course, the original protocol was drafted by the society’s family law committee with support and involvement from the Solicitors’ Family Law Association, now Resolution, as well as the then Lord Chancellor’s Department and the now closed Legal Services Commission. Many other individuals and organisations have been involved in subsequent editions.

Reducing acrimony

The protocol has had a particularly significant impact on how a divorce gets underway. In the past, invariably the first that a respondent might know of a divorce brought against them was the appearance of an official-looking brown envelope on their doormat sent out by the court.

Instead, the protocol encouraged solicitors to notify the respondent, or their solicitors, of the intention to commence proceedings at least seven days in advance, unless there were good reason for doing otherwise, for example, a forum race. In addition, one should set out the fact on which the petition was to be based with a view to coming to an agreement.

Typically, family law solicitors will enclose a draft petition with such an initial letter. These sort of simple provisions can, and do, reduce the level of acrimony upon separation.

The protocol began as a 100-page guide but has now doubled in size. It was not just aimed at lawyers. Its preface envisaged that those representing themselves in family cases would find it helpful, minimising dispute and stress. The first two editions were downloadable free of charge. As the third edition was launched, only the section dealing with the main protocol has been available in this way in subsequent editions.

With increasing numbers of family litigants in person, it remains a mystery to me why the entire protocol is not available online without charge. Surely, with over a third of cases in the family court having no legal representative for either party, it would assist these self-represented individuals, not to mention the courts, to have online access to the entire publication without charge.

Not so alternative

In his foreword to the most recent edition, the current president of the Family Division, Sir James Munby, endorses the requirement to attempt dispute resolution, reminding us that court proceedings should be a last resort.

While mediation had its own chapter from the outset, it is telling that this soon became a chapter devoted to the growing number of types of ‘alternative’ dispute resolution, which are not so alternative any more. Mediation is now dealt with thoroughly over a dozen or more pages, plus mentions throughout the volume. Collaborative law and family law arbitration both feature but only over a couple of pages each in the section on non-court dispute resolution. Hopefully the next edition will also cover the family law arbitration children scheme, launched this summer, as well as the original scheme relating to financial matters.

Anti-protocol step

In my practice I still come across some solicitors’ firms who seem oblivious of the existence of the protocol and its contents. They might issue their own petition even though you have already sent them a draft of yours. Such an anti-protocol step simple serves to stir up rancour and increase costs all round. While these lawyers may or may not be members of Resolution, they need to remember the protocol applies to all family lawyers, including them. I have had cases where courts have refused to make costs orders, which might otherwise have been made, to petitioners whose representatives have breached the protocol. Be warned.

We can all gain a good deal from this ‘authoritative set of best practice guidelines’. Our copies should be the latest editions and be more well thumbed than they currently are.

Tony Roe is the principal of Tony Roe Divorce and Family Law Solicitors

@TonyRoeDivorce www.tonyroesolicitors.com

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