Family lawyers in England and Wales were recently in the firing line, after the Legal Ombudsman Service released figures showing that they had received more complaints in 2011-12 about family disputes than any other category of service. According to their report, around 18% of the complaints they investigated were in this practice area, with just over half of those relating specifically to divorce.
Interestingly, the equivalent report from the Scottish Legal Complaints Commission shows that during 2011-12, family law accounted for 16.8% of all complaints in Scotland, the third largest category after residential conveyancing and "other". So are we Scottish family lawyers performing better than our English counterparts (relative to conveyancers, at least!), or are there aspects of English family procedure which make it inherently more complaint-worthy?
Cost is the main theme of the Ombudsman's report, if we set aside the allegation about the divorce lawyer who turned up drunk to court (!). I'm not aware of any specific comparison of legal costs between England and Scotland, although both jurisdictions have undertaken fairly recent reviews of the costs of civil litigation in general.
A quick opinion poll of our dual-qualified family lawyers indicates that their impression is that an English divorce may be more expensive, all other things being equal. The English courts' emphasis on proactive case management may result in more front-loading and more "directions" hearings to move cases forward, generating substantial amounts of paperwork which has to be prepared, collated and shared.
The broader focus on "needs" in English financial provision rather than clean break "fair sharing", and the consequent need to ingather information on post- as well as pre-separation finances, also carries the potential for greater complexity and a more discretionary outcome. Less predictability in the law may well lead to higher costs.
Equally, however, some people have no option but to divorce in England. For clients who do have a choice of jurisdiction, the potential higher cost may be outweighed by the net benefits of divorcing south of the border, if the English regime would better fit their goals and circumstances. Anyone in this situation would benefit from consulting a family specialist qualified in both jurisdictions.
Resolution, the English association of family lawyers, also points out that divorce is a "distress purchase" which often involves intense and difficult emotions. If things do not turn out as hoped, the strength of feeling involved may make a complaint more likely than in less emotive practice areas. The multiple stresses of family breakdown - children, money, housing - are difficult enough to navigate without worrying about legal costs. It is perhaps understandable that even when the service is outstanding - as the team here strives to be in all cases - some people will feel that their goals were not achieved, or that this came at too high a cost.
Ultimately, too, as lawyers we should never forget that a complaints mechanism is an essential part of the system within which we all operate. The Ombudsman's report is a helpful reminder of the need to be proactive and transparent about discussing legal fees, and to set realistic expectations. None of us should be complacent about that on either side of the border.