Year of the Code: A change for good

I qualified as a solicitor in 1981, just before the formation of Resolution (then the Solicitors Family Law Association) and joined as a member in the mid-80s, so I have lived with the Code of Practice throughout my career. It’s been a game changer in terms of the way we practise family law and remains the foundation stone upon which Resolution was built and the guiding light as our organisation continues to develop and adapt to the changing family justice landscape.

Although its overriding principles remain the same, the Code has gone through significant change over the last 40 years. At the beginning it was very detailed. I remember being on Resolution complaints panels where the alleged poor practice of a member was pleaded as if in a breach of contract claim, with the complainant referring to specific clauses and sub-clauses. Now, of course, as has happened with the SRA guidance, we have moved to a much simpler and more outcomes- rather than rules-based approach, but in the first bullet point of the current version of the Code (reducing or managing conflict) there is still specific reference to one aspect of practice that was in the original – the commitment to avoid inflammatory language.

All Resolution members will have horror tales of receiving communications that clearly do not live up to this promise. I still recall very clearly in the early days of my career receiving a letter that said “the sooner your client realises that she must be punished financially for her adultery the better”. I plucked up the courage to pick up the phone to my opponent (oops – not meant to use that term now!) and suggested that this language was to say the least unhelpful. He wasn’t a Resolution member and I asked whether he’d ever considered joining. His response was that he would consider membership to be “an abrogation of his responsibility to his clients”!

I also recall the solicitor who was representing the wife of a very well-known sportsman in the 80s rightly getting into hot water when being asked by the media to explain what the injunction she had obtained meant in practice. He replied that effectively the only way he was going to get to see his children was “through a telescope”. He accepted that this was not an appropriate way to describe the position and apologised.

Helping family justice professionals and those they represent to think about the words they use has been at the heart of Resolution’s Code since the beginning. The Family Solutions Group’s excellent paper in 2022 (which arose from its November 2020 “What about me?” report) was called Language Matters. As the paper says, language for separating families has evolved out of an adversarial legal system and this needed to change, but the work of the FSG in this respect was a natural extension of what Resolution has been advocating throughout its existence, unsurprisingly when so many of the group’s members are Resolution stalwarts.

Our Guide to Good Practice on Correspondence has been around for a long time and was most recently updated in January 2023. Although I’ve retired from family law practice now and don’t have to worry about it professionally, I have to say that I personally struggled at times to put into practice some of the suggestions in the Guide such as finding an alternative to “the other side” or avoiding “our client/your client”. I know I’m far from the only one. The motivation behind this change in language is absolutely right, but in the end if we fall a little short of complete adherence to all the suggested improvements we will, by aiming high, still be doing a lot better and will be helping to achieve the Code’s stated aim of reducing and managing conflict.

Since Resolution started out in 1982 we have come a long way, but we mustn’t be complacent. In this Year of the Code we can celebrate the fact that the way we deal with family law work is very different now, but as Richard Branson said, every success story is a tale of constant adaption, revision and change. We have to keep at it!