Transcript
Please note this transcript is an automatically generated summary and may contain inaccuracies.
Philip Barnsley, partner and head of family law at Higgs LLP, joined Alison Bull, mediator and arbitrator, on Talking Family Law alongside hosts Abigail Whelan and Natalie Dunn for an episode titled The Five Questions You Really Want to Ask But Feel That You Can't.
The questions were drawn from the YRes community's takeover edition of The Review.
Abigail Whelan: What are some of the signs to pick up on when domestic abuse is an issue in a case, particularly if the client doesn't recognise it themselves?
Alison Bull: The most important point is that we should all be asking domestic abuse screening questions in every single case. If you're unsure what to ask, the domestic abuse toolkit is on the Resolution website, and the Family Mediation Council has also just released a new screening tool. If you feel uncertain about how to ask those questions, attend training — trauma-informed training — because a victim may genuinely not recognise themselves as a victim at all. We need to be genuinely curious, really listen, and explore anything we're unsure about.
I'd also encourage firms to have a safeguarding policy in place and to consider broader training such as counselling skills or mental health awareness. These things build your confidence in those difficult conversations enormously.
Philip Barnsley: It's also important to remember that those therapeutic services and that training are for you as a lawyer too. This is an extremely stressful job, and overlaying it with the trauma you experience on behalf of clients makes it more so. Lean into your colleagues, the Resolution network, and your YRes peers. Look after yourself.
Alison Bull: Absolutely — and family law supervision is worth mentioning as a professional space to access support in your work. I'd encourage everyone to try it where possible.
Abigail Whelan: Are there other practical considerations to have in mind from the outset — things like special measures?
Alison Bull: Special measures are critical if you reach court, but you also have to think about what happens before you get into the building, what happens afterwards, and what happens overnight. Clients in these situations are often in close proximity — they may have children together — so you have to understand the practicalities of their lives and help them to feel and be safer. Having had a client murdered by her ex-husband despite conversations about keeping her safe, I have to acknowledge it isn't always possible. But we want to do all we can so that if the worst happens, we can genuinely say we did our best.
Think also about the wider support network — domestic abuse charities, IDVAs, therapists through GP practices. Asking about what support a client has should be part of every first interaction.
Natalie Dunn: Should we be pleading conduct where it's raised as a concern, and if so, what are your tips?
Philip Barnsley: Domestic abuse and conduct are inextricably linked, and this is always one of the most discussed areas at Resolution's national conference. You have to start with Section 25(2) and the case law — particularly Mr Justice Peel's decisions in NNJ and Setkov and Kairova, where he set out a clear roadmap. Conduct must always be pleaded if you intend to rely on it, and the threshold is high — there must be an identifiable negative financial impact, proved by your client. That makes it genuinely difficult in many cases.
Form A is normally your first formal opportunity to plead it, and you must do so at the earliest opportunity. The court will manage it at the first appointment, usually through relatively short narrative statements. But the exceptionality threshold is high, and parties are often prevented from pursuing conduct arguments. It's worth noting that the high threshold and financial impact requirement is an entirely judicial construct — it's not in the wording of the legislation itself.
We're at a really interesting moment, though. Sir Nicholas Mostyn recently pointed out that the statute simply says conduct should be taken into account when it would be inequitable to disregard it — no gross and obvious test, no financial metrics. He reads it as asking whether it is fair to take the conduct into account. That sets a very different context. Mr Justice Cosworth has then built on that in two recent decisions — LP and MP, and Low and Low Groniger — finding that conduct should be considered if it would be unfair or unjust not to do so, and recognising a real risk of unfairness to survivors if a lack of quantifiable financial loss prevents a court from considering abusive behaviour at all. That is a significant shift.
We are potentially seeing two separate schools of thought develop. Ideally one of those recent judgments will reach the Court of Appeal and give us clarity. In the meantime, do read those four judgments — they're not difficult reads, and you will be arguing one way or the other in financial remedy cases for some time to come.
If conduct develops during the case rather than being apparent from the outset, go back to the four scenarios identified by Mr Justice Mostyn in OG and AG. Personal misconduct — historical and ongoing domestic abuse — should be pleaded as early as possible. Litigation misconduct, non-disclosure, and failure to participate should be pleaded as soon as those issues arise. The remedies differ too: personal misconduct goes to the substantive award; litigation misconduct is normally penalised in costs; adverse inferences around non-disclosure are more of a quantification tool. Understanding which scenario you're in will determine when and how to plead.
Alison Bull: It is wrong that survivors of domestic abuse are effectively penalised for being unable to demonstrate financial consequences. The suggestion that conduct can be adequately picked up through other Section 25(2) factors — income needs, medical costs — simply doesn't hold up for someone who has been in a long-term coercive controlling relationship. I'd also urge everyone to read the Resolution report on domestic abuse and financial remedy proceedings, Shining a Light on Economic Abuse. And with a Law Commission consultation expected shortly, we may in time see some legislative change — though these things take a long time.
Natalie Dunn: What advice would you give a junior lawyer when preparing a Form E?
Alison Bull: The Form E is a critical document, and it's sometimes delegated without the best instructions about what it needs to achieve. Before you complete the narrative sections, you need to understand the strategy for the case. If you don't understand what you're trying to achieve, you can't draft something that supports it. Find out before you start.
Philip Barnsley: I'd echo that entirely — and add that it is your client's evidence, not yours. Engage with the client, get clarification, ask questions. The duty is full, frank, and clear financial disclosure. If you don't understand what's on the form, how can anyone else? In most cases, needs will be the central issue, and you should be aiming to present a sensible, evidenced, reasonable outcome that a judge can readily attach to. If you've been delegated the work and you don't know the strategy, find out. Lean into colleagues or your network if you need to.
The Form E is the first formal pleading you put before the court. Like everything in this work, strategy matters.
Abigail Whelan: It also takes confidence to challenge clients when what they're telling you doesn't fit the strategy.
Alison Bull: Absolutely. And where a client isn't giving you the information you need — a serial non-discloser who provides inconsistent information and doesn't respond to questions — do the best you can with what you have, but advise them in writing, very clearly, about the risks: add-backs, adverse inferences, and the fact that whatever they swear to in the statement of truth will come back at final hearing. Document all of that advice carefully.
Philip Barnsley: Trust your instincts. If something feels wrong, follow it up. Good training gives you better instincts than you might realise, and 99 times out of 100 they're right.
Abigail Whelan: Any guidance on pitching capital needs and income needs budgets?
Philip Barnsley: Capital needs should be pitched at a realistic and reasonable level — that should go without saying, but in litigation it often doesn't. I genuinely don't know how you justify a capital requirement that exceeds the total assets in the case. On housing, adduce the evidence, consider mortgage capacity, and tie it together into a cogent, evidenced position. Judges under enormous pressure genuinely appreciate that, and it's the best way to make your case.
On income, I'll be honest: in contested proceedings, I've rarely seen an income schedule — including my own — that is truly based in reality. They're often wish lists, often inflated. It's a habit in the profession, and I hope YRes members will buck that trend. In NCDR and mediation, it's quite different — clients actually engage with what they've genuinely spent, rather than producing a fictitious list ready for a horse trade.
Alison Bull: Agreed. Increasing use of AI and tech tools may help produce budgets grounded in actual expenditure in straightforward cases — bank statement analysis has already been found persuasive by judges in reported cases. I'd also flag that where economic abuse has been a feature, a client's income needs may have been artificially depressed throughout the relationship. Their budget should reflect what a reasonable standard of living looks like, not just what they were permitted to spend. We need to be alive to that, and make sure they have the support to work out what a realistic future looks like.
Natalie Dunn: How can we manage client expectations around spousal maintenance, given there are no hard and fast rules?
Alison Bull: It is genuinely tricky. It's increasingly difficult to justify maintenance beyond around five years, but that is not a rule. It goes back to income needs budgets, earning capacity, and whether maintenance can be capitalised so both parties can move on. Focus on the practicalities of the particular case rather than getting hung up on a number of years. In mediation these conversations tend to be much more grounded — couples engage with what each person is actually capable of rather than taking up positions.
Philip Barnsley: Know your tribunal. Dealing with a spousal maintenance claim at the Central Family Court is a very different exercise from dealing with it at a regional court, and if you don't know your tribunal, find someone who does. In collaborative and NCDR settings I've consistently found it easier to have realistic conversations about maintenance than in traditional litigation, where parties become positional and find it hard to move. NCDR creates an environment where people can be more honest about what's actually in front of them — and that's very much where the whole movement is heading.
Abigail Whelan: Thank you both so much for joining us and for your knowledge and expertise. And thank you to everyone who has tuned in.
Natalie Dunn: And thank you to the YRes community for such thought-provoking questions. The latest issue of The Review is out now — Abby and I have answered the rest of your questions in there, so do give that a read too.
This information is for guidance purposes only and does not constitute legal advice. We recommend you seek legal advice before acting on any information given.
