Explain the procedure

Mr and Mrs H were anxious to see their grandchildren. For reasons outside their control, contact had proved difficult. They instructed solicitors to make an application to the court, as they viewed such a move as the only way forward.


The solicitors attempted to negotiate contact with the children's parents, who were also represented, and it was clear that a great deal of disharmony existed. Initially, the solicitors did not explain to Mr and Mrs H that procedure required them to go through a period of attempted negotiation and to enlist the help of welfare officers if appropriate, before filing an application with the court.


As a result, a period of time passed before formal action was taken and, while solicitors dealing with such topics will be familiar with the situation, it was clear that Mr and Mrs H were not.


The solicitors later explained the position, and Mr and Mrs H were uncertain as to what action they wished to take. There were a variety of matters to bear in mind, not the least of which was an exacerbation of family friction. An attendance note of an interview with Mr and Mrs H confirmed their uncertainty and there was no evidence that the solicitors were instructed to file an application within a specific period of time. It was a matter for the solicitor's professional judgement as to when would be best to commence proceedings.


Subsequently, Mr and Mrs H complained of delay. The adjudicator confirmed that to make a positive finding, an alleged delay must be 'unreasonable'. In this case, it would clearly be inappropriate to make a finding. There was no unreasonable delay on the part of the solicitors but rather an understandable period of indecision for about two months while Mr and Mrs H decided what they wished to do and what was best in the interests of their grandchildren and family harmony.


Mr and Mrs H took the view that the solicitors had prevented them from seeing their grandchildren for an extended period of time. There was no evidence to support such an allegation and the adjudicator could not second-guess what might have been the position had earlier steps been taken.


The adjudicator had to decide whether the service provided by the solicitors was adequate, and on the facts of this case decided it was. There was a lack of clarity in the evidence relating to the complaints and the personal family circumstances that were presented.


The position may have been different. In this case, there was evidence on a balance of probabilities that advice had been given to Mr and Mrs H concerning procedural matters. In many cases there is no such evidence, frequently resulting in findings of inadequacy. The lesson is to ensure that clients know what is going to happen and why so that misunderstandings and complaints can be avoided.


This column is written by a Law Society adjudicator. It is for illustration only and should not be treated as a precedent




Lawyerline

Solicitors needing advice on how to handle a service complaint can contact the Law Society's LAWYERLINE support service, tel: 0870 606 2588.