Friday, May 05, 2006

What value the Protocol?

I have mentioned the Family Law Protocol previously (see this post and this post). As stated in the preface to the second edition, the Protocol is the standard by which the Law Society's and Resolution's panel members are judged, and to which Legal Aid practitioners are expected to practise. Despite this, I regularly come across such people flagrantly disregarding the Protocol. The most common example is in relation to the issue of divorce proceedings. Paragraph 2.4.1 (e) of the Protocol states that prior to the commencement of proceedings solicitors should provide respondents or their solicitors "with the fact or facts on which the petition is based and the particulars, with a view to coming to an agreement or minimising misunderstanding unless there is good reason not to do so". Paragraph 2.6.2 (a) goes on to state that before filing the statement of arrangements for children "a copy should normally be sent to the respondent's solicitors (or respondents where unrepresented) for approval and a reasonable time should be allowed for reply". These provisions are often not followed, which can have the effect of starting the divorce proceedings off on completely the 'wrong foot', thereby increasing the chance of conflict between the parties and reducing the chance of settlement.

I realise that there are times when there are good reasons not to comply with the Protocol, but, as also stated in the preface, notes of those reasons should be stated on the client's file. I wonder how often this happens.

It seems that too many family lawyers are merely paying lip service to the Protocol. Until such time as there is a proper sanction for failure to comply with the Protocol without good reason, it will continue to be extremely difficult to explain to clients why we have a Protocol at all.

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