Reflections on the Statement of Ethical Principles and Practice

In 2022, prior to entering its 40^th year, Resolution relaunched its Statement of Ethical Principles and Practice, which supports the Code of Practice that all Resolution members are expected to embrace and reflect in the work they do. As I prepare to enter a new phase of my practice, having recently completed my mediation foundation training and stepping into the role of Co-Chair of the National YRes committee, I have been reflecting on the Statement and how it may inform and improve the way we work.

The changes to family law and the way we practice over the last 40 years have been significant, largely thanks to the work Resolution does and the changes it advocates and champions. It is an area that is constantly evolving as family justice professionals continue to adapt and develop their practices to ensure that their clients’ best interests are front and centre of the work they do. This in itself is part of upholding the Code of Practice and Statement of Ethical Principles and Practice, as the needs of clients and their expectations when dealing with family law professionals move with the times and we all gain a greater understanding of the impact on children and families when they separate.

The Statement of Ethical Principles and Practice has been set out under six easy to navigate headings as set out below.

Good standing

In line with the requirements of the SRA and Code of Practice, this highlights the need to maintain good standing with regulators and professional bodies. This applies not just for lawyer members of Resolution, but all family justice professionals who wish to work in accordance with the Code of Practice.

This principle is perhaps the corner stone as it is central to ensuring that individuals seeking the support of a family justice professional have trust and confidence in the person they are instructing. This will become all the more important as the market becomes harder to navigate for individuals seeking help, given the growth in the unregulated sector. This principle sets us apart from those in the unregulated sector and clients will have confidence that an individual identified through the Resolution “Find a Professional” tool will be in good standing within their profession and will uphold best practices in their area of specialism.

Tolerance and respect

There are two elements to this heading which I have been reflecting on and in which the family law world is increasingly paying attention to. The first is diversity and the need to take a long, hard look at how we operate and whether we truly are encouraging diversity in our practices and in meeting the needs of the diverse families we work with.

This was highlighted as an area which requires attention at both the Family Practice Conference and the National YRes Conference in the Autumn of 2022. At the Family Practice Conference, Ravi Kaur and Kelly Pougher gave an emotive and informative presentation on neurodiversity in clients and practitioners alike, and how we need to start adapting our practices to ensure that the needs of neurodiverse individuals are met and supported. (See also Maisie Lockyer’s article in this issue on Andrew Greensmith’s judgment in W v H [2022] EWFC 150.

At the National YRes conference, Christina Warner and Remyhs Baker hosted a frank question and answer session during which they shared their experiences and discussed how these might inform and drive change for the future – also discussed in this issue. As a profession we are not as diverse as we need to be, but we have an opportunity to be at the forefront of change in this area and inscribing this in our Ethical Code and Principles is important to ensue the need for change remains central to our thinking.

Ultimately, this all goes to acting in the best interests of our clients by ensuring that they have access to diverse professionals and are able to have their specific and individual needs met.

Working together for clients

Family justice professionals have long been accustomed to working together for their clients, and we have established modes of practices such as collaborative working, hybrid mediation, co-mediation, inter solicitor negotiations, and round table meetings (to name but a few) that allow us to sit down together to help families problem solve. Angela Lake Carroll at the Family Practice Conference highlighted the importance of a multifaceted practice and shared her view that in the future we will need to be family specialists able to offer all services to reduce the confusion clients currently face. This is all well and good, but an important aspect of this is now being brought to the forefront in how we may improve the way we work together for families.

The Family Law Language Project will help us to reflect the Ethical Code and Principles in the work we do, as its mission is to question the way we use language and place us under scrutiny to ensure that we are all focused on improving how we communicate for the benefit of our clients, and also as professionals. The Project has recently worked with Our Family Wizard to highlight the negative use of language in solicitor correspondence through the app’s “tone-o-meter” function. Both entertaining and informative, it demonstrated how professionals can escalate tensions for their clients in sending correspondence that is combative and, aside from anything else, shows a distinct lack of respect for the professional they are writing to.

As well as the Project, the courts are increasingly turning their attention to how language is used and how it may help or hinder proceedings. This includes working with the Family Justice Young People’s Board (FJYPB) to ensure that court proceedings remain child-focused and child-centred, and to consider what changes might be made to lessen the impact on children of being involved in court proceedings. This includes the use of language – one such example being to use a child’s name within court orders rather than “child of the family” or “the child”.

Keeping children front and centre was also beautifully highlighted recently by the letter written by Recorder John McKendrick KC to accompany his judgment, which was addressed to the children of the family and signed off “Judge John”. The letter is kind, human and clear. It shares with the children why the judge made the decision he did and how he hopes that the children’s parents will now work together to make his decision a positive thing for the family. Well worth a read – brave Judge John!

Protecting clients

The Principles set out under this heading take on a new relevance this year as Resolution has launched Resolution Together. Family justice professionals are increasingly adopting this model, known as “two clients, one lawyer”, and whilst different practices are operating under different structures and formats, the starting point is the same. That is, both individuals meeting with and receiving advice from the same lawyer.

The model has raised questions within the family law community both in terms of conflicts of interest and safeguarding, the two pillars of this heading of protecting clients. In terms of conflicts of interest, this is of course an important element which needs to be explained to the clients, but we are also being encouraged to view “interests” in a different way.

For the model to work, the professionals involved need to consider the best interests of the family as a whole, which in turn ensures that the individual members of that family have their best interests met. This will need to involve a move away from adopting tactical positions and seeking to maximise one client’s outcome, as the inevitable result of this is that it minimises the other client’s outcome. Ultimately, is it really in the best interests of a family for one person to receive their best outcome and the other to receive their worst? Are we not better to focus on both individuals receiving a balanced outcome which allows them both to meet their needs?

While for many this may seem to be stating the obvious, it is this principle on which the “two clients, one lawyer” model may work successfully in helping families to agree a way forward.

The other important element under this heading is safeguarding. It is sadly an ever-present and relevant aspect of our roles to ensure that clients are being properly safeguarded and that our clients or their children are not being placed in positions of risk. Resolution has launched further safeguarding training as part of the Resolution Together training materials and it is an area that I personally have become much better informed on as a result of the mediation training.

Tackling safeguarding from the outset of a matter and throughout must be an ongoing duty of care we provide. Safeguarding must be detailed, and practitioners need training in this regard. We need to ensure that we are asking the right questions and whilst it can be challenging to have those conversations with clients, they are essential to ensuring we are upholding the Statement of Principles and keeping our clients safe.

Wellbeing

For a number of years now wellbeing has been the talk of the town in the family law world and firms themselves and Resolution are working hard to improve the wellbeing support being offered to family justice professionals. The work we do is emotive, it is challenging, and it can have a genuine and long-term impact on us as individuals – both positively and negatively.

The Wellbeing Committee within Resolution has now been established and I look forward to seeing what support and initiatives they introduce to further the wellbeing of members. This will, however, need to be supported by firms taking an active interest in wellbeing and ensuring that, as per the Statement of Principles, members are able to “access the professional support they need”.

From personal experience, the most valuable support I have had access to since joining Family Law Partners has been our Reflective Practice sessions. Once a month we sit down as a team with our Director of Client Wellbeing, a qualified counsellor and family consultant, and have an opportunity to talk through the work we have been doing that month and how it has impacted us. Not only does this provide a space to understand difficult dynamics on a case, cry, celebrate or simply sit and listen, it allows us to check in with how we are doing as a team and who might need additional support.

My biggest takeaway from this: needing support is not a weakness, it does not mean you have failed, it does not mean your entire caseload will be taken away and handed to someone else. What it means is you are human. And that tricky client, challenging case, difficult outcome has had a meaningful and not to be unexpected impact on you as a person. Without the forums and support to explore that and have an outlet for the negative impacts of the roles we play, I question any of our longevity within the career that we love, and it is for this reason that wellbeing is quite rightly being held in the spotlight.

Confidentiality

The opening sentence of this heading states that “we believe clients must understand what will happen to their information, who will see it and how it will be shared”. Over recent years we have all had to become more aware of our use and storage of information and client details, as GDPR rules have been tightened and our increased use of technology and remote working has brought about new challenges.

Where confidentiality and the importance of discussing this with clients has more recently come to the forefront, is in the new transparency rules in the family courts. The Transparency Project would need a whole other article in itself, so I will not delve into the detail, but I have been reflecting on the importance of making clients aware of the changes and the potential impact on them. In the same way that we talk through costs, litigation risk and how a court hearing will be run, we also now need to be discussing the possibility that details of the case could be shared, and how clients may feel about this.

I can see why Resolution chose to relaunch the Statement of Ethical Principles and Practice given the amount and significance of changes to family law that we have seen in recent years. It is so important that we do not lose sight of these principles and that we continue to reflect and ensure that we are working within them, for the good of ourselves, our practices and most importantly, our clients. If we all embrace the Statement of Ethical Principles and Practice in the work we do we will be leaving a better legacy for each family we work with, society, and ourselves.