Learning outcomes for this module
At the end of this module you will:
Have an improved understanding of the SRA Code of Conduct, particularly as it relates to representing children.
Be able to apply the Code to practical situations that you may encounter.
Understand the relationship between a children’s rights-based approach and your professional obligations as a solicitor or other professional working in a solicitors firm or legal advice organisation.
Have some tools to “audit” your firm’s approach to representing children.
Structure of this module
An introduction to the Code of Conduct
An introduction to the Code of Conduct
The Solicitors Regulation Authority (SRA) Code of Conduct provides the ethical framework for those working in solicitors firms and law centres. The Bar Standards Board and the Office of the Immigration Services Commissioner also have codes in place - placing similar obligations on barristers and immigration advisers.
The SRA Code of Conduct is designed to shape the relationship between solicitors (and others working in law firms) and their clients. It sets out the obligations all solicitors have towards all clients.
After looking carefully at the Code, we have concluded that it is difficult to envisage how those obligations can be met fully without adopting a children’s rights-based approach. There is no doubt in our mind that adopting a children’s rights based approach – effectively following the guidance and recommendations made in the various modules of this online tool - will strengthen your legal practice and minimise the risks to yourself, your business and your clients.
The Code has ten pervading, mandatory principles. The principles “define the fundamental ethical and professional standards that we expect ... You should always have regard to the Principles and use them as your starting point when faced with an ethical dilemma” (SRA Code, Introduction)
The Code is arranged in chapters covering particular topics such as “Client Care”. Each topic contains a list of “outcomes” which must be achieved by solicitors. The outcomes are followed by a list of “indicative behaviours”. The indicative behaviours indicate whether the outcomes have been achieved or not. If the outcomes are not achieved, (i.e.if the indicative behaviours have not been met) then you probably have not met your professional obligations. The Code is also client focused: it aims to protect the public (your clients), rather than the profession.
- Act in the best interests of each client
- Provide a proper standard of service to your clients; and
- Run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity.
Client care - "You and Your Client"
The rest of this module will focus on Chapter One of the Code, which deals with Client Care, in some detail. Here are some of the Outcomes that must be achieved by solicitors:
- O (1.1) you treat your clients fairly;
- O (1.2) you provide services to your clients in a manner which protects their interests in their matter, subject to the proper administration of justice;
- O (1.4) you have the resources, skills and procedures to carry out your clients' instructions;
- O (1.5) the service you provide to clients is competent, delivered in a timely manner and takes account of your clients' needs and circumstances;
- O (1.12) clients are in a position to make informed decisions about the services they need, how their matter will be handled and the options available to them.
The Code also suggests that acting in the following ways (indicative behaviours) may indicate that the mandatory outcomes have been achieved:
Dealing with the client's matter
- IB (1.1) agreeing an appropriate level of service with your client, for example the type and frequency of communications.
This suggests that you should consider what type and what frequency of communication is best for your clients. In Module 2 we give some suggestions about this when working with children. For example, some lawyers use media like WhatsApp or text messages to facilitate communication with child clients. You will also learn about ways to adjust your legal advice to fit with the needs, preferences and capacities of your child clients, and there are practical child friendly resources within each Module that can be adapted to your practice.
- IB (1.2) explaining your responsibilities and those of the client;
- IB (1.3) ensuring that the client is told, in writing, the name and status of the person(s) dealing with the matter and the name and status of the person responsible for its overall supervision;
Clients who are children may not understand the role of a lawyer, and you may have to explain this on more than one occasion. Modules 1 and 2 deal with this in more depth. The references section at the end of Module 1 contains links to a series of videos in several languages explaining some of the key elements surrounding the topic of children and justice, including the right to information, the right to be heard, and the right to legal representation and protection. These may help you explain some of the fundamentals in an accessible way. Module 2 also contains a link to CORAM’s streamlined client care letter, a one page information sheet, which is better suited to children since it explains mutual responsibilities in an accessible manner. You could consider adapting this approach for your own practice – for example using a Coram style information sheet as an index or summary to your more detailed client care letter.
- IB (1.4) explaining any arrangements, such as fee sharing or referral arrangements, which are relevant to the client's instructions;
Essential reading for immigration practitioners is a recent SRA report “Asylum report: The quality of legal service provided to asylum seekers” and associated guidance. It is clear from the report that, in some firms at least, interpreters have an inappropriate degree of control. In some cases firms’ practices may amount, in effect, to fee sharing or referral fees. You should consider carefully if you use an interpreter whether they have an appropriate level of expertise and can communicate clearly in both English and the client’s own language. Remember if you are providing the interpreter you are responsible for the quality of the interpretation. It is good practice to be clear with the interpreter that you act in the best interests of the client at all times, including in your decision about who should interpret for the client at subsequent appointments.
- IB (1.6) in taking instructions and during the course of the retainer, having proper regard to your client's mental capacity or other vulnerability, such as incapacity or duress;
Module 1 covers initial interviews and taking instruction from children. It is at this stage that you will get a clearer impression of whether your client has the capacity to instruct you. However, a children’s rights-based approach demands a slightly different perspective: it demands that we reflect on and develop our own skills and capacities, as practitioners, to facilitate the involvement of our child clients, no matter how vulnerable or how young they may be. The more skilled we are at supporting child clients and communicating with them, the more likely it is they will demonstrate capacity. Even if a child does not have capacity, it still may be possible for them to participate in a more limited way. However, there are certain circumstances which may seriously affect a child’s capacity to give instructions and make decisions that are in his or her best interests of which you need to be aware. In an immigration case, for example, you should always consider whether a child client is acting under duress from a relative or has been trafficked and is in immediate need of protection. Module 1 also provides guidance on how to deal with adults who wish to answer for a child, and reminds lawyers of the need to engage directly with the child wherever possible, even if the child’s interests are being represented by someone else.
- IB (1.7) considering whether you should decline to act or cease to act because you cannot act in the client's best interests;
- IB (1.10) if you have to cease acting for a client, explaining to the client their possible options for pursuing their matter;
In making a decision to cease to act on behalf of the child, you should take care to ensure that those reasons are communicated sensitively, clearly and honestly to the child. Module 5 covers the end stages of a child client’s case, including: how to explain decisions and subsequent legal options to a child and how to refer the child to follow-up services and support.
Appeals are time-consuming and require dedicated expertise. Module 3 illustrates how children’s rights arguments can be used more creatively to bolster arguments on appeal, and points to the need to present such arguments as early as possible in the case. The T.A.L.E. training materials also provide a summary of how UNCRC provisions and other children’s rights arguments have been applied to existing case law in the field of family law and immigration/asylum law. This summary is updated regularly to reflect the most recent developments, and can provide some useful sources of inspiration to make appeals less daunting and more effective.
Module 6 offers guidance and resources to support strategic litigation and appeals to the supranational courts. Often lawyers do not pursue these more ambitious options because of lack of confidence or experience, or because of lack of funding – the equivalent of legal aid funding from supranational courts can be very limited and awards of compensation are often small.
Where clients do not straightforwardly qualify for legal aid
You should consider whether you have discussed and exhausted all reasonable funding options. For example, you should consider applying for Exceptional Case Funding (ECF) when a matter does not qualify for legal aid and there is potential, as a result, that the client’s fundamental rights will be breached. ECF may be available, for example, in a complex private law family matter, and in immigration matters. Audit your practice’s approach and consider whether you are being too restrictive, particularly where the client or prospective client is a child. Consider also, whether there is scope to learn from other practitioners who have experience of applying for ECF funding. The Public Law Project has produced some guidance on the circumstances under which ECF may be available for unrepresented people. CORAM children’s legal centre have also produced a fact sheet providing information on how to pursue legal aid and ECF funding for migrant and asylum seeking children.
If ECF funding is not available to pursue a case involving children (for example, a private family law case) and your client decides to litigate in person, you should inform your client of the relevant pro bono support available, such as the Personal Support Unit (PSU).
- IB (1.22) having a written complaints procedure which:
- is brought to clients’ attention at the outset of the matter
- is easy for clients to use and understand, allowing for complaints to be made by any reasonable means
- is responsive to the needs of individual clients, especially those who are vulnerable
- enables complaints to be dealt with promptly and fairly, with decisions based on a sufficient investigation of the circumstances ….
- IB (1.24) in the event that a client makes a complaint, providing them with all the necessary information concerning the handling of the complaint
It is worth thinking about whether or not your firm’s complaints procedure meets the needs of child clients. What adjustments could you make to the procedure to make it more child friendly? Do you treat all expressions of dissatisfaction as a complaint or require clients to formally complain? Module 5 provides an opportunity to reflect on the measures you take to obtain this feedback from children, and on what you do to respond to such complaints constructively.
The Code states: the following indicative behaviours tend to indicate the outcomes set out in Chapter One have not been achieved:
If your child client has capacity, you must take instructions from them, not from other people such as parents or social workers. You must also bear in mind your duty of confidentiality – you cannot provide information to parents, carers, or other professionals without proper, informed consent from your client. Module 2 covers some of these issues in more depth.
In conclusion, you must, if the child is your client,
act in the best interests of a child – not the adults or other professionals involved in the case
provide a proper standard of service to a child
deliver on your commitment to equality of opportunity and diversity, which will require you to adapt your practice to the needs of your child client.
To do this, you will need to:
be clear from the outset about who is your client
assess and, if appropriate, nurture the competence of a child to provide instructions, and in particular optimise their capacity through your own skilled approach by explaining the law and procedure clearly and working alongside them to build a constructive relationship
take into account the wishes and feelings of a child, even if you assess them not to be competent
explain the law and provide clear advice that is understood by the child, showing a basic awareness of child development as well as your knowledge of that particular child’s level of understanding. You may need to draw in appropriate expertise to assist you with this
encourage participation of the child at all times, so that their age does not act as a barrier to their perspectives, wishes and feelings being heard and taken into account in a case
ensure you have sufficient expertise to conduct the case at a high level of competence. There are lots of resources and additional training to develop your skills further if necessary.