This Guidance was reviewed in July 2019. The law or procedure may have changed since that time and members should check the up-to-date position.
National Centre for Domestic Violence (NCDV)
Resolution is aware of the varying different approaches by Practitioners and the Courts in relation to work received via the NCDV. Some courts have also issued their own guidelines and local “housekeeping” rules concerning precedent templates to use. Some practitioners readily accept initial application/statements being prepared by the NCDV others do not. All of these differences are under constant review and consideration by Resolution. Good practice guidelines in relation to these matters will become available as soon as possible.
This practice guide provides an overview of working within the Code of Practice when faced with complex and sensitive matters. It does not seek to be a “how to guide” as there are many publications available for members to refer to, some of which are referred to below. It is important to recognise that the Code of Practice has to be read in conjunction with the professional duties imposed by regulators to act in the best interests of clients and to follow the Family Law Protocol when dealing with such cases too.
Members should always keep themselves up to date with legal aid policy and provide information to their clients about its availability in these types of matters, even where their firm is unable to provide legal aid assistance. Information about legal aid is readily available here.
By their very nature domestic abuse cases are both complex and sensitive, and in many cases are often encountered at the very commencement of the dispute, setting the tone for the rest of the proceedings. However, members are encouraged to be alert to domestic abuse throughout their dealings with their clients. Resolution provides a toolkit for screening for domestic abuse, which all members should be aware of. Copies can be downloaded from the website or leaflets can be obtained from Resolution central office.
Conduct matters in a constructive and non-confrontational way
This lies at the very heart of Resolution’s Code of Practice.
Sometimes the most constructive way of dealing with an allegation of domestic abuse is for there to be immediate action through a court-managed procedure rather than through DR processes. It is often thought that this means that the member is in collusion with their client for taking such a step and that taking immediate court action this will run counter to all that the Code stands for. This is not so. It is sometimes better for the court to determine these issues, sooner rather than later, for both the good of the alleged victim and the alleged perpetrator.
If a decision is taken to send a pre-warning-type letter before issuing proceedings then the letter should be drafted in accordance with the guidelines provided in Resolution’s Good Practice Guide of Correspondence. It is important that any correspondence avoids expression of a member’s own opinions.
Training and experience
All family lawyers should be screening for domestic abuse. If revealed, it is recommended that consideration is given as to whether the lawyer has the expertise for handling such matters. It is recommended that members do not undertake domestic abuse work without having the relevant training. If this is not in place then the support of colleagues and other peers who have such experience is essential.
Lawyers owe duties to other organisations and there are occasions when their duty of confidentiality to a client can be overridden. The lawyer is an officer of the court and a gatekeeper of public funding, and has also to be alert to incidents of criminal activity, which means they may be faced with difficult decisions about breaking their confidentiality to their own client.
Members should ensure that they inform their clients at an early stage that there may be incidents when confidentiality has to be overridden. This includes reminding clients of the lawyer’s duties to the court, the Legal Aid Agency, and potentially also to the police and social services if criminal activity, especially involving children, is discovered.
The SRA ethics helpline can assist in this area, by phone or email (0370 606 2577 or firstname.lastname@example.org).
Resolution has also prepared its own safeguarding policy, which will appear on the website soon.
Dealing with an allegation of domestic abuse is very often seen as inflammatory and confrontational by the alleged perpetrator. Members are encouraged to read the Guide to Good Practice on Correspondence.
If correspondence is drafted in accordance with that Guide a member should not be seen as colluding with their client and should be seen as maintaining professional objectivity throughout. This is important whether acting for a victim or for an alleged perpetrator.
Litigants in person
Resolution has produced a new practice guide on litigants in person, which all members are encouraged to read. There are also recordings available on our website which LiPs should be referred to.
- Abide by the Code of Practice and the Good Practice Guide at all times.
- Demonstrate professional objectivity throughout.
- Draft letters and documents to be Resolution-compliant.
- Avoid becoming personally involved in a matter so you cannot be accused of colluding with a client.
- Act promptly when faced with a domestic abuse revelation and consider whether there are any immediate safeguarding issues to be put in place or whether a pre-action warning letter is more appropriate. Such a letter will not put you in breach of the Code (see above).
- Be alert when acting for a perpetrator or an alleged perpetrator that their interests are considered appropriately too, and where necessary consider whether there is a need to defend a matter or to deal with it by way of undertakings or cross-undertakings. Often victims of domestic abuse believe that defending a matter means that the lawyer is furthering that abuse, but it is important to retain professional objectivity to all concerned in the matter.
- Members should encourage clients to be open and honest and remind them of circumstances where their duty to a client can be overridden.
There are many publications available to help in how to prepare for a domestic abuse matter, among them:
- Our toolkit for screening for domestic abuse
- The Family Law Protocol
- Our guidance note on Instructing Experts in Proceedings Involving Children
- Domestic Abuse – Practice and Precedents by Jane Wilson (Law Society, 2010)
Finally, Resolution’s Domestic Abuse Committee is always willing to consider any feedback.