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Family Law Protocol (2nd Edition)

Christina Blacklaws, Chair of the Law Society's Family Law Committee, sets out the main changes in the 2nd edition of the Family Law Protocol.

Christina Blacklaws, Chairman of the Law Society's Family Law Committee

It is widely acknowledged that the publication in 2002 of the first edition of the Family Law Protocol broke new ground. The Law Society embarked on the drafting of the Protocol partly because family solicitors were being blamed for adding to conflict levels between separating couples by taking an adversarial stance. In fact, this criticism could fairly be levelled at only a small minority of solicitors. It was also felt by the Family Law Committee of the Law Society that the development of a Protocol would encourage greater consistency of practice. Although specifically referring to solicitors, it was designed to offer guidance to all family practitioners working in solicitors' firms, whether legal executives, paralegals or clerks.

The Protocol is a statement of best practice in family matters. While some practitioners may find little in it they do not already know and do, it has brought a number of real benefits for all family practitioners. It is of particular help to those who are less experienced or who are not specialists in this area, providing a benchmark of good practice to which they must aspire. It has clearly demonstrated to policy makers and the public that family solicitors are not out to aggravate problems associated with relationship breakdown, but to actively encourage a constructive and conciliatory approach to the resolution of family disputes, whether through negotiation or mediation, using court proceedings as a last resort.

This second edition of the Family Law Protocol has been produced (as was the first edition) by the Law Society in close consultation with Resolution, the Legal Services Commission and the Department for Constitutional Affairs. The redrafting of the Protocol has enabled many amendments to be made. Some arise out of experience, others have been necessitated by significant changes to the law. The main changes are set out in detail below.

Child Support Issues
The implementation of the Child Support, Pensions and Social Securities Act 2000 on 3 March 2003 has meant that the Child Support Agency (CSA) is now a factor in resolving family cases where there are children. The updated Protocol includes a new section on child support issues to help guide family law practitioners through this complicated area. For example, practitioners need to be aware that it is no longer possible to exclude the operation of the CSA for more than a limited period. While it is still possible for parents to agree the level of child support that they will pay informally between them, unless that agreement is recorded in a court order within divorce proceedings, it is not possible to stop either party making an application to the CSA at any time to assess the level of child support to be paid and such assessment will override any informal agreement.

Even if the agreement reached between the parties is incorporated into a court order (for example, as part of an overall settlement), either party may after the period of 12 months give two months' notice to the other of their intention to apply to the CSA. After that period of notice has expired, they may ask the CSA to calculate the level of child support to be paid by the non-resident parent. In practice, this means it is no longer possible to exclude the operation of the Child Support Agency Regulations for more than a limited period of time. The level of child support is no longer one of the variables which can be used to craft a long term solution to meet the parties' needs.

Solicitors also need to be familiar with the rules defining the jurisdiction of the CSA and be aware of the situations where parents cannot use the CSA even if they wish to do so. In addition, solicitors need to be able to identify whether a case is being dealt with under the old regulations (Child Support Acts 1991 and 1995) or whether it is being dealt with under the new Child Support, Pensions and Social Security Act 2000.

This section contains further guidance in relation to a number of additional child support issues, for example, how to calculate child support entitlement, variables that could be manipulated by either parent so as to influence the level of assessment, and the appeals process.

Parental Responsibility
Section 111 of the Adoption and Children Act 2002, which came into force on 1 December 2003, provides that 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. The updated Protocol again provides guidance to practitioners on this new area of law. Where a child's birth has been registered after 1 December 2003, practitioners are required 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. Unmarried fathers whose names are not shown on birth certificates 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 re-register, and therefore cannot obtain parental responsibility by this method. Solicitors should discuss with unmarried parents whether or not it is appropriate to enter into a parental responsibility agreement or seek a parental responsibility order, and/or make a will to appoint a testamentary guardian.

Collaborative Law
Collaborative law is an alternative dispute resolution practice that is rapidly developing in the UK, and is yet another tool available to family law practitioners. The updated Protocol describes the collaborative law process as one in which solicitors and their clients agree in writing to reach a tailored settlement without court involvement, and to work together to resolve children and financial issues arising out of the separation. In addition, they may enlist other experts, such as children therapists, as part of the 'team'. Using their skills in client representation, negotiation and problem solving, collaborative family lawyers help their clients in a series of 'four-way' meetings to shape a fair agreement. If they cannot reach an agreement the clients will need to instruct new solicitors to proceed to court.

The Protocol recognises that whilst collaborative law has many benefits as regards the management (and in particular the emotional management) of a dispute, there are unlikely to be significant costs savings as between the collaborative law process and the conventional process of settlement by inter-solicitor negotiation. This is one of a developing range of services to assist clients to resolve issues without the need for court proceedings. As with mediation, it will not be suitable for everyone, but is a useful process for some couples and may help them to manage relationship breakdown more easily.

Domestic Abuse
This edition of the Protocol includes detailed additions under the Domestic Abuse section, particularly in respect of enforcement of orders. Section 1 of the Domestic Violence, Crime and Victims Act 2004 makes breach of a non-molestation order a criminal, arrestable offence. This means that offenders can be dealt with for any breach in either the civil court or the criminal court. When this section of the Act comes into force, many actions for breach of a non-molestation order may become the responsibility of the police. Solicitors should note the position and the need to remind clients of the new method of enforcement, which may not involve solicitors or the clients. This edition also includes additional information about the effect domestic abuse has on contact and residence applications.

Civil Partnerships
Information about the effect of the new Civil Partnership Act 2004 which came into force on 5 December 2005 has also been included. Solicitors must be aware that same sex couples who register their relationship under the Civil Partnership Act 2004 acquire rights akin to those of married couples and should not be treated as cohabitants. Solicitors must also be aware that there will be an inheritance tax exemption for registered partners equivalent to the spouse exemption for married couples.

The redrafting of the Protocol has enabled significant amendments to be made to the section on pensions under financial relief. It is recognised that the pensions of the parties can sometimes be their most significant assets, and that it is always important for practitioners to establish the value of the parties' pension funds and to consider whether it is appropriate for a pension sharing order or a pension attachment order to be made or at least some offsetting to occur in respect of other assets. In a case where a pension sharing or attachment order is anticipated it is important that the solicitor understands the benefits available under the pension scheme as schemes can vary significantly.

Inheritance Act
This edition of the Protocol also contains the addition of a section on the Inheritance (Provision for Family and Dependants) Act 1975. Most firms distinguish between contentious probate work and claims under the Inheritance (Provision for Family and Dependants) Act 1975 ('Inheritance Act 1975'). In some firms, Inheritance Act 1975 cases are dealt with by family lawyers. Solicitors should not undertake without supervision any work which they know to be outside their area of expertise. If a case appears complex or beyond the expertise of a practitioner they should consider whether the case should be passed to a member of the Association of Contentious Trust and Probate Lawyers. Solicitors are referred to the draft protocol which can be found on the Association's website at A failure to follow even this draft protocol can lead to a costs penalty. Solicitors must understand that claims brought under the Inheritance Act 1975 are governed by CPR 1998 and the claim form provides that they should be issued under CPR 1998, Part 8, even though often Part 8 procedure is not appropriate if there are substantial disputed facts. It is vital that all family law practitioners who undertake work on claims under the Inheritance Act 1975 are familiar with this section of the Protocol.

A number of additional appendices have been added to this edition of the Protocol, including:

This edition of the Protocol will be launched at the end of March. Free copies have been sent to all practitioners who have indicated to the Law Society that they carry out family law work and who have agreed to receive mail outs from the Law Society. The Law Society is encouraging all solicitors who carry out family work to check that they have access to a copy, which will be made available on the Law Society website in the near future.

Additional copies can be purchased from the Law Society bookshop and Marston Book Services.

Practitioners are encouraged to write to the Law Society with comments and suggestions, as the Protocol will continue to be regularly updated to ensure that it reflects changes in law and practice, so that it remains the benchmark of best practice for the resolution of family disputes. Thus members of the profession can, if they wish, influence the rules which govern the way they work.