In a nutshell
Family law barristers deal with an array of cases arising from marital, civil union or cohabitation breakdown and related issues concerning children. Simple cases are heard in the County Courts, while complex or high-value cases are listed in the Family Division of the High Court. Around half of divorcing couples have at least one child aged under 16, and together divorces affect nearly 160,000 children a year. Consequently, a huge amount of court time is allotted to divorce, separation, adoption, child residence and contact orders, financial provision and domestic violence.
Realities of the job
- Financial cases and public and private law children’s work offer very different challenges.
- Emotional resilience is required, as is a capacity for empathy, as the work involves asking clients for intimate details of their private life, and breaking devastating news to the emotionally fragile. Private law children’s cases can sometimes involve serious allegations between parents and require the input of child psychologists. Public law cases (care proceedings between local authorities and parents) invariably include detailed and potentially distressing medical evidence or abuse.
- For many clients, involvement with the courts is out of the ordinary and they will rely heavily on their barrister to guide them through the process. The law can never fix emotional problems relating to marital breakdown or child issues, but it can pacify a situation.
- The job calls for communication, tact and maturity. Cases have a significant impact on the lives they involve, so finding the most appropriate course of action for each client is important. The best advocates are those who can differentiate between a case and client requiring a bullish approach and those crying out for settlement and concessions to be made.
- Where possible, mediation is used to resolve disputes in a more efficient and less unsettling fashion.
- Teamwork is crucial. As the barrister is the link between the client, the judge, solicitors and social workers, it is important to win the trust and confidence of all parties.
- The legislation affecting this area is comprehensive, and there’s a large body of case law. Keeping abreast of developments is necessary because the job is more about negotiating general principles than adhering strictly to precedents.
- Finance-oriented barristers need an understanding of pensions and shares and a good grounding in the basics of trusts and property.
Current issues
October 2023
- In late 2022, the Office for National Statistics (ONS) disclosed that the incidence of domestic violence targeting adults aged 16 to 59 had shown no significant difference since March 2020, which was when the data was last gathered at the peak of the pandemic.
- The Domestic Abuse Act announced in June 2021 aimed to introduce important changes to combat the increase. Most importantly, the act implemented a statutory definition of domestic abuse, which recognises controlling behavior, emotional and economic abuse. It is thought that these changes will raise awareness and make it more straightforward for victims of domestic abuse to access help.
- Legal aid cuts are hitting the Family Bar hard, with funding removed from a majority of cases, except in the event of domestic violence or child abuse. Following the Covid-19 pandemic, the MOJ announced it was investing £3 million in support of people representing themselves in court, including in family courts.
- In addition to receiving work from solicitors, several barristers also operate a ‘direct access’ practice, meaning clients can cut out the middleman by taking their cases directly to barristers without going through a solicitor. Although clients don’t have to pay solicitors’ fees, some barristers charge more for direct access cases given the extra legwork it involves. Stephen Lyon, barrister at family law set 4 Paper Buildings, told us: “Direct access is proving to be a very popular way of resolving disputes, as it means clients and barristers can build a direct relationship, rather than having a solicitor – acting as intermediary – forming the relationship on their behalf.”
- The most recent data from the Office for National Statistics states that2021 saw a 9.6% rise in divorces approved in England and Wales. At 63.1% females are more likely to file for divorce than males at 36.9%.
- ‘No fault’ divorce will come into effect in England and Wales in April 2022, meaning couples can get divorced without having to quote one of the five reasons for divorce: adultery, unreasonable behaviour, desertion, two years separation or five years separation. The new legislation also means that both parties can apply for divorce together, rather than one issuing proceedings against the other, and that it will be impossible to contest the divorce.
- The UK is currently in the process of reviewing and updating its surrogacy laws, which have seen little modification since the 1990s. The proposed changes include establishing a 'new surrogacy pathway' that would legally recognize the intended parents as the child's legal parents from the moment of birth. The report also advocates for improved regulation of payments made to surrogates, with commercial surrogacy continuing to be prohibited. Furthermore, the suggested changes aim to curb international surrogacy practices, which pose a higher risk of exploiting women and children.
- The definition of a psychologist is once again a topic of debate due to itslack of protection, making it accessible for use by anyone. This debate was sparked by a mother's appeal for a re-hearing, arguing that a parental alienation expert who provided testimony in her child's case was not adequately qualified. Family court president Sir Andrew Mcfarlane has called for changes to what he referred to as a “confusing system” in order to clarify the qualifications and standards associated with the term psychologist.
Some tips
- The Family Bar is quite small and competition for pupillage is intense. Think about how you can evidence your interest in family law.
- Younger pupils might find it daunting to advise on mortgages, marriages and children when they’ve never experienced any of these things personally. Those embarking on a second career, or who have delayed a year or two and acquired other life experiences, have a distinct advantage.
- Check a set's work orientation before applying for pupillage; some will specialise in a specific area like the financial aspects of divorce.