Let's be realistic

The Central Family Court has produced a working draft guidance written by His Honour Judge Robin Tolson QC which has attracted particular attention; but it does contain controversial suggestions.

Some have poured scorn upon it. Some have supported the intentions behind it. Parts of it are possibly unrealistic.

Things have to change but change can only occur if it encompasses everyone including the court service, judges, solicitors and barristers.

Change is impossible unless all parts work together.

The present way of working in family justice cannot continue. It’s not serving the interests of the users and it is not in keeping with present expectations of working patterns.

It may have worked okay – just ‘okay’ with undoubtedly adverse consequences – for some of us in the 1980s and 1990s.

But it is rightly being rejected by millennials and others who are insistent on a better work/life balance, or simply demanding integrity and respect for working in a stressful environment.

The working draft has undoubtedly had a lot of input. It states:

• there should be a one-hour lunch break;
• there’s no need to reply to emails after 6pm and before 8am;
• only one lawyer in attendance is almost always enough;
• orders should be as short as possible …

… and much more.

It contains a lot of common sense but has met much understandable criticism. One respected lawyer, for instance, says it is inconsistent with the demands of negotiating and drafting after court.

Having one hour for lunch is tremendous but there are judges in family courts regularly having lists with time estimates in excess of seven hours, which is impossible between 10am and 4:30pm with a one-hour lunch.

Suggesting position statements by 9am on the morning of the hearing is unacceptable for the parties and lawyers who need to properly prepare – not least as the rules require 11am on the day before.

But the answer is not to deride the guidance but to find a way to make it work; and those of us in family justice should be at the fore in supporting this.

Of all lawyers, we see the impact on our clients of the stress and strain of the proceedings and the way we work. For their sake as well as ours it must change.

But fundamentally, it cannot change in just one part of the system. Barristers cannot deliver position statements well in advance if solicitors don’t send over the papers in good time.

Barristers cannot prepare if their clerks clog up their diary with masses of court hearings and conferences.

Solicitors cannot prepare if other solicitors ignore deadlines in rules or court orders.

Solicitors are put under pressure with unrealistic expectations from court offices and judicial orders.

Judges cannot do their work well with overloaded lists and inadequate time for advance reading and judgments.

And so it goes on. The draft guidance is valuable but only if followed by consistent changes throughout the system.

It then needs proper adherence. If a lawyers clears their diary a day before a hearing for proper preparation and the other side produces their skeleton at 6pm (messing up other commitments such as childcare for the evening), they are entitled to expect the judge to strongly criticise them and, perhaps, not accept that document.

But too often, judges have allowed this practice to be perpetuated; they did it in their days so why not now? Last-minute questionnaires – even Forms E – are waved through on the basis that the lawyer working longer hours on the other side has nevertheless managed to prepare in time.

Solicitors and barristers need wellbeing support from the judiciary. The Family Procedure Rules are there to support wellbeing as much as to facilitate procedural fairness.

Being a family lawyer means dealing with major emotions between parties in relationship breakdown and other dramatic circumstances – it’s the territory in which we work. For many, the rewards go alongside the demands.

Some of the wellbeing guidance is unrealistic and unfair on lawyers who do comply with proper timetables.

Change requires a strong lead from judges condemning poor behaviour and approaches which are disrespectful to other professionals and the parties concerned.

Respect, integrity and understanding were key original features in the emergent family law profession in the 1980s when long hours and huge stress were at their peak.

Perhaps the time has come for a John Cornwell-type code of practice for wellbeing in family justice?

David Hodson OBE is a partner (solicitor, English and Australian), mediator and arbitrator at The International Family Law Group iflg.uk.com