Everything You Wanted to Know About Practising Family Law

Elissa Da Costa

• Publisher: Routledge-Cavendish
• Year: 2004
• Topic: Law
• eBook ISBN:
  9781135334826
• Subtopic: Family Law
• Index: Law

First published in 2005. This book provides trainees and newly qualified solicitors with a first aid kit for dealing with the most common aspects of work in a busy family department, including domestic violence, private children matters, ancillary relief applications and cohabitation disputes.

SECTION 1
DOMESTIC ABUSE

INTRODUCTION

Domestic abuse is the term used in the Family Law Protocol (FLP) (p 66) and encompasses many more types of unacceptable behaviour than the behaviour conjured up by the phrase ‘domestic violence’. Domestic abuse is described as ‘violence against a person by any other person with whom that person is, or has been, in a domestic relationship’. It encompasses a range of behaviours including, but not necessarily limited to, physical abuse, sexual abuse, psychological abuse such as harassment and intimidation, damage to property and threats of such types of abuse. Furthermore, it may be a single act or a series of acts that form a pattern of behaviour, which by themselves may seem trivial but, taken together, might be considered a campaign of abuse.

This type of work often forms the mainstay of the practice of the trainee who is frequently called upon to interview a client as a matter of urgency and who may have to prepare the client’s witness statement and take on the role of advocate in making the appropriate application.

THE LAW AND WHERE TO FIND IT

The relevant law to be applied is found in Pt IV of the Family Law Act 1996 and the relevant rules are the Family Proceedings Rules 1991, as amended, if making the application in a county court. You will need to be familiar with the Family Proceedings Court Rules 1991 if you are going to make an application in the Family Proceedings Court (which is found in the magistrates’ court), as is often the case if you are acting for a client who requires public funding for their case. It is also useful to familiarise yourself with the FLP.

1 THE FAMILY LAW PROTOCOL

The FLP provides very clear guidance to practitioners on the appropriate manner in which to deal with domestic abuse cases. The FLP provides that solicitors must:

1. treat the safety of clients and any children as a priority;
2. screen appropriately for domestic abuse;
3. where domestic abuse is not revealed at the first meeting, continue to keep the possibility of domestic abuse under review;
4. when domestic abuse is disclosed, undertake a needs assessment and safety planning with clients; the appropriate remedy for each client’s individual needs must be discussed and kept under review.¹

2 THE FIRST MEETING WITH THE CLIENT

You need to be aware that this may be the first time your client has had to consult a solicitor and that they may be feeling very nervous about meeting you, as well as upset and anxious with regard to the problem on which your advice is sought.

Many people who have never had to consult a lawyer before have various misconceptions about the profession and have some preconceived ideas that lawyers are ‘fat cats’ more concerned with earning money for the practice than with their client’s problem. Your client may hold these views, which can act as a barrier to effective communication between you both and, therefore, you need to aim, at the initial interview, to present a view of the lawyer which dispels those myths.

The first interview may well set the tone for the future client/solicitor relationship. You need to conduct the interview sympathetically and reassuringly, but effectively.

It will be important to set aside sufficient time for the interview and to try to ensure that you are not interrupted. The client needs to feel that they have your complete attention. You also need your client’s undivided attention in order to take instructions as effectively as possible, so try to see them without any friend or relative, whom they may wish to bring along for moral support, although this may not always be possible or effective.

It is a fact that family law clients visit solicitors because there is a problem and therefore an understanding of how they might be feeling is essential. A client will go through a range of emotions depending on their personality, ability to cope with a problem and the seriousness of that problem. Some clients may be angry while others are terribly upset and emotional. It is difficult to have a meaningful interview and obtain the information you need to make an application if your client is very upset and therefore you need to be able to put the client at ease before you get started.

Every firm will do things differently. Some firms have surgeries which mean that free half-hour interviews are available at set times for people who simply walk in without an appointment. If your firm does this, then you may not know in advance what problem a client is seeking help and advice about. Other firms may arrange more formal interviews and the person who makes the appointment for you may already have taken some brief details so that you have an idea of the nature of the legal problem with which you will be dealing.

However, whatever the nature of the legal problem, there are some basic pointers to establishing a rapport and gaining client confidence in the interview. Particularly in the context of domestic abuse, it is essential to understand that the client, most often the female partner in a relationship, has exercised enormous courage in admitting the problems within the relationship and making an initial appointment to see you. This client will need a lot of help and understanding and a solicitor who is ready to assist and is non-judgmental. There are all sorts of reasons why women, in particular, remain in abusive relationships, usually owing to their financial concerns and worries about being economically dependent on their partners as well as concerns about their children.

2.1 Meeting and greeting the client

Try to start the appointment at the agreed time. Clients who are nervous about seeing a solicitor will become more apprehensive if there is a delay. If you are delayed, perhaps because you are still at court, telephone your office to ensure that someone explains the delay to your client and offers them a cup of tea or coffee while they are waiting.

Greet the client yourself. You should go into the reception area to collect your client rather than have them brought to you or expect them to find their way through a maze of corridors to your office or the interview room. The client will have plenty on their mind without having to worry about finding your office.

Introduce yourself, smile and shake hands, while making eye contact. Remember that you are setting the tone for your future client/solicitor relationship and you need to appear approachable and friendly while inspiring confidence. The short trip from reception to your office or the room in which you will conduct the interview gives you a moment or two in which to break the ice with the client.

2.2 The interview environment

You may interview clients in your room or in a room which your firm has specially designated for the purpose of interviewing. This room should convey competence, efficiency and warmth. Your room says a great deal about the way in which you work and sends out messages to the client.

You should avoid having a desk full of clutter, such as other case files or a large computer, which makes it difficult for the client to see you and talk to you. Consider the message that a cluttered desk gives to the client. For example, it may make a sensitive client think that you have far more important things to do than deal with their case.

Many firms have a boardroom which also doubles as an interview room. Very often, such rooms have one large table and are not very ‘family’ orientated. Consider how the client might feel if you place yourself at one end of the boardroom table and the client at the other. Consider arranging the seating so that you and your client are next to each other, at right angles at one end of the table, to make the client feel more comfortable. If the interview takes place in your office, try to arrange the room so that you and the client sit at right angles to each other, with the client’s seat next to one side of your desk rather than on opposite sides of it, as this can appear confrontational. From a psychological point of view, it is important for the client to feel that you are both ‘on the same side’.

You also need to convey the impression that, for the duration of the interview, your client and what they have to say are the most important things to you at that time. Make the client feel important by asking your secretary or the firm’s receptionist not to interrupt you for approximately one hour. If, however, you have any personal safety concerns about the client you are interviewing, then it is advisable to ensure that someone does interrupt at specific prearranged intervals to make sure that everything is going well. If you have concerns that your client may behave unpredictably, be careful to avoid having any large, heavy objects on your desk, which may get thrown if the client becomes extremely upset or angry.

Family clients often become very distressed during the course of the interview and you should keep a box of tissues available in the interview room.

2.3 The client who brings a friend

As mentioned earlier, many clients will come to see you accompanied by a friend or relative to give them moral support. Whilst there are no hard and fast rules about how you should handle this, there are two important matters to consider. First, everything discussed between you and your client is covered by legal professional privilege and is therefore confidential. This needs to be made clear to the client and their agreement should be sought as to their friend or relative’s presence in the interview. Confidentiality should also be explained to the friend or relative. Secondly, in taking initial instructions and preparing the case, your instructions need to be given and your advice understood by the client. If the person accompanying them is to be present, then they must understand that you are instructed by the client and not them, and that the friend or relative can assist you by giving support to the client, rather than hinder you by interrupting. It will be a matter for your individual judgment on a case by case basis as to whether you allow someone other than the client to be present in your interviews. If a client is particularly distressed, then it is probably sensible, until they gain more confidence, to have someone else with whom they are familiar in the room. People in distress are unlikely to take in what is being said or to be able to recall important dates and events with relative ease. The other person present could prove quite helpful in this respect.

On the other hand, it can be irritating to have someone other than the client in the room who is constantly interrupting and, if this happens, you will need to be firm in asking them to wait outside.

Very often, the client has no choice but to attend for an interview accompanied by their children. They may be unable to leave the children elsewhere and may have a baby who requires feeding. Very young children can be very distracting both for you and the client and, if possible, the children should be looked after by another member of staff during the course of the interview, particularly where they are old enough to understand what is being discussed. It is useful in a family law practice to have a supply of colouring books and crayons, jigsaws and soft toys to keep children occupied while you take instructions from the parent.

2.4 Structuring the interview

Planning an interview may be difficult, as you may not have very much information as to the nature of the problem. Much will depend on how the appointment was made.

If the client telephoned to arrange the appointment, it will depend on how the call was taken and what information, if any, the client gave about the problem on the telephone. Where a prospective client actually attends your offices to arrange the initial interview, it is easier if a member of staff at reception takes a few details with which you can be armed when the client attends for the appointment.

However little information you have prior to the interview, there are some things that you can plan. You should keep a supply of checklists for general information and some specific checklists for dealing with, for example, domestic abuse, ancillary relief, cohabitation claims or children. These will ensure that you do not omit to ask important questions during the interview and will allow you to focus more on the client than on taking notes. If your client is eligible for public funding, there will be forms to complete which are lengthy, but in addition to enabling you to obtain the information required for the Certificate of Public Funding application may, as well, act as a checklist for information about the client and their legal problem.

2.5 Starting the interview

Begin by telling the client how you intend to structure the interview. Clients who have never attended a solicitor’s office before may be a little apprehensive and will appreciate an overview of what is going to happen. Explain what it is you intend to do during the interview, for example, that you will need certain information about the problem. This may frighten some clients and you can make them feel at ease by explaining that everything they tell you will remain confidential. You should also explain that you will need to make notes and that in some cases you will need to ask detailed and often delicate questions. You should also explain about the issue of costs, including costs liability, and if the client is likely to be eligible for public funding this should be dealt with at this stage of the interview. Indeed, it may well be that the forms required for a Certificate of Public Funding can be completed during the interview, which will provide you with a substantial amount of the information that you would need generally for the purpose of making an application to the court.

It is also important at this stage to establish that making an application to the court is just one of the options that the client may have and that you will attempt to deal with matters without necessarily going to court. Indeed, the possibility of mediation and conciliation should always be covered in the interview.

If you are not yet qualified, you must inform the client that you are a trainee. This does not have to sound like an apology, but could be communicated in a very positive way. You could inform the client that they are getting good value for money in that you will be doing the work and that it will be checked by someone more senior, who will be continually reviewing their case and the work done on it.

Establish effective communication by being as clear as you can about the information that you need. This is where a prepared checklist comes in useful. Begin by taking some initial details about the client, for example, their full name, address, any other address at which they may prefer to receive correspondence, and telephone number, as well as the most appropriate times to call.

Ask the client about the nature of the problem. Start by asking an open question and then just listen. You might begin by asking what has brought the client to see you or say something like ‘my secretary has told me …’. Allow the client to talk and express their feelings. Clients may tell you a great deal that is irrelevant to the conduct of any litigation but they may need to get such matters off their chests. This may be the first opportunity that the client has had to talk about their problem with an ‘expert’, and you should allow them to do so. Forcing the client to keep off matters which you consider irrelevant may make it more difficult for the client to be open about the relevant matters. You can always steer matters back to the facts that you consider relevant by asking for more information about those particular facts.

Ensure that you ‘listen’. Try not to interrupt the client’s flow except to the extent that you need to ask questions to elaborate on a point or to clarify any ambiguities. You should always be aware of the client’s body language as they tell you the story. Watching for signs of anger or emotion will help you to preempt and deal with any difficulties. If a client appears to be particularly distressed, try to be sympathetic and offer them a break, a cup of tea or coffee, etc.

It is also helpful during the initial stages of the interview, while the client is telling you their story, to ask them to pause for a moment while you summarise for them what they have told you. This has the effect of reassuring the client that you are listening carefully and ensures that you have understood the information correctly, and that the client has given it to you correctly.

2.6 The middle of the interview

Once you have understood the nature of the client’s problem you can then begin to ask more detailed questions focusing on specific incidents or events. Be careful that whilst you are taking notes, you maintain eye contact with the client to ensure that they feel that they are receiving your full attention.

It is at this stage of the interview that you should allow and encourage the client to ask questions. They will probably be anxious to know what can be done about their problem. When advising the client, try to avoid being legalistic. Rather than giving the client a lecture on the law, explain the legal issues in straightforward, layperson’s terms and check whether you have been understood.

You will, no doubt, have presented the client with a number of options, having considered the client’s short term, medium term and long term position. Indeed, it is a good idea to get the client to consider the future in this way. For example, a client who...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Preface
• Introduction
• Section 1: Domestic Abuse
• Section 2: Applications Under the Children Act 1989
• Section 3: Ancillary Relief Applications
• Section 4: Cohabitation Cases