A moment of pause and reflection by Daniel Sheridan

‘Who, what, where, why and when?” – a New Year in the Family Court

Into 2025 and we launch into a new term, and we all will be pondering over what the New Year may bring in a professional context. Even if you, rightly, resisted not doing so, whilst enjoying some festive down time, the unavoidable questions may by the time you read this have begun to whirl: What CPD goals should I set? Where do I even start with this year’s blank ‘BSB CPD ESTABLISHED PRACTITIONER PROGRAMME TEMPLATE’? How many emails now have red flags? The clerks politely ask: “Do you have everything you need for your cases next week?”. The post-Christmas intentionally under-stimulated ‘thinking’ brain may not quite want to spark back up into action and the ‘survival’ brain may have gone into overdrive upon almost immediate receipt of any non-Christmas purchase related emails. Pause. Breathe. Think. We’ve got this.

As I thumbed the pages to my Christmas read ‘Walking the Bones of Britain’[i] I stumbled upon a chapter about Dr Samuel Johnson and James Boswell’s visits to the Isle of Skye in 1773. The relevant lines open ‘The two men of letters, the caustic lexicographer and moralist Johnson and his perma-cheerful companion Boswell, were embarked on their Great Hebridean Tour.’ The reference hadn’t, on first read, stuck in mind, but whilst I sat wondering how to focus my thoughts on this article I pulled out an old read from the shelf; and, I had a lucky find ‘Lives of the Law, selected essays and speeches (2000-2010)’[ii]. In fact, the valuable (in content and meaning) book reminded me of the sacrifices and relationships that are, at times, fractured by life at the Family Bar, but whose contributions are formative in our lives, as it was signed with a Christmas note from my then Husband to give me inspirational food for thought pre-pupillage, and that it did, with my thanks to him. In it, Tom Bingham reminded us of the brilliance with which Johnson (in 1773) answered the perennial question ‘how do you defend a man whom you know to be guilty?’ and his reply is worthy of repetition in its fullest terms:

“We talked of the practice of the law. Sir William Forbes said, he thought an honest lawyer should never undertake a cause which he was satisfied was not a just one. ‘Sir, (said Mr Johnson), a lawyer has no business with the justice or injustice of the cause which he undertakes, unless his client asks his opinion, and then he is bound to give it honestly. The justice or injustice of the cause is to be decided by the judge. Consider, sir; what is the purpose of courts of justice? It is, that every man may have his cause fairly tried, by men appointed to try causes. A lawyer is not to tell what he knows to be a lie; he is not to produce what he knows to be a false deed; but he is not to usurp the province of the jury and of the judge, and determine what shall be the effect of the jury and of the judge, and determine what shall be the effect of the evidence, – what shall be the result of legal argument. As it rarely happens that a man is fit to plead his own cause, lawyers are a class of community, who, by study and experience, have acquired the art and power of arranging evidence, and of applying to the points at issue what the law has settled. A lawyer is to do for his client all that his client might fairly do for himself, if he could. If, by a superiority of attention, of knowledge, of skill, and a better method of communications, he has the advantage, of his adversary, it is an advantage to which he is entitled. There must always be some advantage to which he is entitled. There must always be an advantage of one side or the other; and it is better that advantage should be had by talents, than by chance. If lawyers were to undertake no causes till they were sure they were just, a man might be precluded altogether from a trial of his claim, though, were it judicially examined, it be found a very just claim’.

It seems to me that much of what Johnson says about the role of the lawyer continues to apply today, and you may, I hope, even be inspired by one or other component of his description; and in an age, often in my view, insufficiently enhanced by such elegant architects and proponents of language, keep whichever line ‘gets you’ in mind before and after reading this article.

Barristers in England and Wales are, of course, subject to a range of professional obligations concerning their conduct, primarily governed by the Bar Code of Conduct. Barristers must maintain their independence and not compromise their professional standards to please clients[iii]. Furthermore, barristers must not engage in conduct that could reasonably be seen by the public to undermine their honesty and integrity. This includes both professional and certain personal conduct, especially if it involves misleading the court or wasting its time[iv]. How then can those reminders of what we do and how we do it apply in the context of our practice to motivate and inspire us in the challenging environment in which we operate? Are there any learning points and things we can do to help each other? Yes, always.

Focusing on the question of court time for a moment, the importance of, and indeed pressures to, avoid delay will resonate very strongly with family practitioners with the relaunch of the PLO in 2024 and a strong refocus on the Public Law Outline set out under PD 12A ‘CARE, SUPERVISION AND OTHER PART 4 PROCEEDINGS: GUIDE TO CASE MANAGEMENT’. All family cases, including care proceedings, are subject to the overriding objective of ‘enabling the court to deal with cases justly, having regard to the welfare issues involved’, as set out in FPR 2010, SI 2010/2955, Pt 1, and the court must seek to give effect to this when exercising any power or interpreting any rule. The principal aims are to have no more than 2 or 3 hearings per care proceedings and to conclude the proceedings (where it can be done justly) within 26 weeks.

In Re G (Child Post-Mortem Report: Delays) [2022] EWFC 55, [2023] 1 FLR 218 at para [31] McFarlane P emphasised the serious impacts of delay encountered in the context of obtaining postmortem reports and underlined a focus on the need to obtain such evidence as is ‘necessary’ to establish the s.31 CA 1989 threshold and to determine ultimate welfare questions. Parties have clear responsibilities to help the Court to further the overriding objective[v] and are expected to confine issues and evidence to what is essential for the proper presentation of their case. This requires great focus and dedication to the task of evidential analysis and presentation, which can, in some cases, occupy hours, weeks or even months of preparation. This is why advocates must maintain a sharp focus on relevant issues, when, for example, inviting the Court to litigate certain facts, i.e. when inviting the Family Court to hold a fact-finding hearing[vi] or when expert evidence is necessary[vii], or identifying support which is essential to ensure that your lay client’s communication needs are properly understood and accommodated[viii]. In Johnson’s terms, be informed and prepared by the study and experience that you have acquired the art and power of arranging evidence, and of applying to the points at issue what the law has settled.

The ‘no delay’ principle for decisions about children is, of course, a fundamental aim, and one readily accepted by all practitioners, but it is one applied in the context of a Family Court system which is, most often in a public law context, under intense pressure of work and poor remuneration. The Bar Council’s ‘Review of Civil Legal Aid -Call for evidence, The Bar Council’s Response’ identified two main themes when examining the experience of civil and family barristers with the civil legal aid system, inadequate remuneration and unhelpful, time-consuming and unnecessary administration. These are undoubtedly concerns and pressures which impact directly on many publicly funded practitioners on a regular basis. There is too, almost from the outset of practice, the real impact of vicarious trauma and burnout in the legal profession, as a result of exposure to certain types of material, through listening to our clients, reading and watching material and, at times, being a first-hand responder to the aftermath of an incident or traumatic presentation of a vulnerable client. These stressors may operate, at times, as obstacles to performing at our best and, at times, they make for a difficult, dark and lonely working environment, especially into the small hours reading and preparing a case based on the most complex and upsetting facts.

The impact of vicarious trauma in our profession has, in my opinion, been analysed and commented on brilliantly by Joanna Fleck, teacher and writer, and Rachel Francis, family and immigration Barrister. Theirs is a piece of work emphasising an issue of great importance; our mental health and its inextricable linkage to our fitness to practice. Herein I repeat and reference directly some of their observations, which struck a chord with me. Indeed, in the foreword written by Baroness Kennedy KC she comments that ‘it would be wrong to suggest that our clients’ trauma does not stay with us. And sometimes they are haunting’. She goes on to say that ‘no professional person should be unsupported in their work nor so poorly rewarded that their survival in the professional they love is put at risk’ and concludes that the book ‘is a clarion as to what is happening to lawyers’.  

The role of workplace support is crucial given lawyers’ duty of confidentiality. The workplace is the only ethically secure place where facts of a case can be named, and clients can be discussed openly[ix]. It is a sad reflection that often lawyers working with vulnerable lawyers are less likely to be offered support from their workplace. Sadly, that reflects my own experience (and I rather suspect I am not alone in that) inside and outside of court, which always surprises me within a system which exists to make best interests decisions about children and works closely, all of the time, with societies’ most vulnerable. There are then then Core Duties which are engaged in our daily working lives, identified by Fleck and Francis, which underline the need to support mental wellbeing and to have adequate workplace support in place: “CD7 ‘You must provide a competent standard of work and service each client; and CD10 ‘You must take reasonable steps to manage your practice, or carry out your role within your practice, competently and in such a way as to achieve compliance with your legal and regulatory obligations[x]”.

We, each of us, need to feel support and to work harder at providing reciprocal support to ourselves, as a profession, and to others, as colleagues. I can do no better than to emphasise some of the sentiments expressed in the 19 January 2023 ‘Statement of Expected Behaviour”[xi]  in respect of judicial office holders in and outside of the hearing room, which highlights the need for certain behaviours to govern our work practices: ‘We all have a responsibility to help foster a positive working environment, where diversity is recognised and valued, and everyone is treated with dignity and respect’. Indeed, I likewise agree that we should all ‘be aware of how our words and behaviour can affect others’, ‘act professionally and courteously, including under pressure, and avoid shouting or snapping’; and ‘be open to feedback if we have done something that may have caused discomfort or offence’. These things matter, and those who find them perhaps difficult to verbalise, or dare I say woke, would do well to ask the rhetorical question: ‘would I ever imagine done anything but that to a professional or lay client?’ Examining our attitude towards others in an, at times, very stressful and emotionally charged working environment can only serve to enhance the quality of what we do by reducing our stressors and anxieties inside and outside of the court. In Johnson’s terms, determine what shall be the effect of the evidence, – what shall be the result of legal argument.

In a May 2022 article in Counsel magazine, written by Darren Howe KC and Professor Jo Delahunty KC ‘Recognising and managing oppressive behaviour – in-court and out: part 2[xii]’, there are some extremely helpful approaches we should all adopt in our collective interest in a professional, supportive and compassionate working environment. We should, in a compassionate and modern Family Court, lead by example, setting proper standards of conduct, courtesy and respect which we would, at any level of seniority, demand be afforded to our lay clients in our representation of their interests. 

Alongside maintaining these collective standards, which better position advocates to achieve the high standards of professionalism alluded to by Johnson, the other responsibility is to your own psychological wellbeing. It is perplexing to think that psychological wellbeing within the professional is rarely spoken about. Indeed, that, at the time of writing, remains part of Bar Councils’ by-line on its online mental health and well-being resources hub, which reads: ‘Psychological wellbeing within the profession is rarely spoken about. The Bar Council are seeking to address and support the challenges facing the profession[xiii].’ It is important to recognise, as suggested in the Bar Council’s working lives survey 2024 report, that Barristers working in family law are said to have significantly lower overall wellbeing compared to all other practice areas, except for the criminal Bar. Barristers practising in commercial law reported the highest average overall wellbeing[xiv]. The Bar Council, Institute of Barristers’ Clerks (‘IBC’) and the Legal Practice Managers’ Association (‘LPMA’) provide an Assistance Programme to all self-employed barristers with a practising certificate as well as members of the IBC and LPMA. BMIF fund use of this Service by self-employed barristers. Indeed, the Law Society also operates a pastoral care helpline and sets out a number of resources on its website, as these thoughts are not unique to Barristers, and apply in equal measure to all family law professionals alike, acting at the Bar and on the Bench.

If a ‘lawyer is to do for his client all that his client might fairly do for himself, if he could’ then that lawyer should be attuned to, informed about and responsive to the stressors of their practice; and, resource permitting, so should the Family Court. In his Nicholas Wall Memorial Lecture, Lord Justice Peter Jackson: ‘Is Family Law law?’[xv] suggested that ‘it is arguable that the Family Court and its cohabiting cousin, the Court of Protection, are now home to a wider variety of work than any other branch of the law. All human life is there, from before the moment of conception to death and beyond. Put another way, family law engages almost every Convention right: Articles 2, 3, 5, 6, 8, 9, 10, 12, 14 and A1P1.’ Lord Justice Peter Jackson then went on in his concluding remarks about the abilities of Nicholas Wall to say that: ‘To practise family law well demands fortitude, forensic acuity and an understanding of human nature. Whether you are a Mortimer père, textbook writer, or a Mortimer fils, trial advocate, it is an ideal home for an able lawyer with a concern for people’.

Pausing, thinking and reflecting onLord Justice Peter Jackson’s eloquent and textbook quality description of a life in Family Law, it would be a great New Year’s aspiration if we, each of us, reflect on how we best defend that next man whom we know to be guilty and the reason(s) that we will continue to do it to the best of our abilities, or that next vulnerable person, who requires our help support and compassion; and, do so with a greater degree of kindness and interest in our fellow colleagues, with a due regard to their invisible stressors that silently, covertly and, sometimes overwhelmingly so, tick along in their minds. To conclude, practitioners may, going forward, find use in, and hopefully adopt, the model set out by Resolution for use in our day-to-day work[xvi], which includes some very positive aims:

• Reduce or manage any conflict and confrontation; for example, by not using inflammatory language.
• Support and encourage families to put the best interests of any children first.
• Act with honesty, integrity and objectivity.
• Help clients understand and manage the potential long-term financial and emotional consequences of decisions.
• Listen to and treat everyone with respect and without judgment.
• Use my experience and knowledge to guide clients through the options available to them.

Continually develop my knowledge and skills.

Daniel Sheridan