International Men’s Day: parental leave – is the approach of men in barristers’ chambers changing?

When tasked with writing an article to mark International Men’s Day 2021, I confess that I initially struggled for a topic.  However, and after help from the woman in my life (of course!), I settled on parental leave: a topic of equal importance to all parents, men or otherwise, of course, but one where it seemed might be particularly worth exploring in a male context.  Have the attitudes and actions of men, or at least the men within our chambers who have recently become fathers, evolved over recent years?  Are men coming to see parental leave as more accessible, or as more of an entitlement than they used to?  As more of a privilege?  As more of a responsibility, both in terms of parenthood itself and of supporting their partners?

Barristers at the self-employed Bar have fairly unusual working arrangements, which make parental leave potentially both more flexible and more challenging than would be the case for other professionals who more often than not are employed and work within corporate structures.

Self-employed barristers belong to an organisation (typically an unincorporated association) but generate their own income: there is no paid parental leave, often only (such as in the case of our chambers; the position may differ from set to set) certain mechanisms for indirect financial support such as rent holidays.  Nevertheless, there is a fear that taking any significant period of time off work will be not only directly damaging to income during that period but also may harm relationships with clients, which in modern times often depend on barristers being accessible, flexible and prepared to work very hard at very short notice.

So, I set off to interview a number of colleagues, who variously (i) range in age from 32 to 40; (ii) have been at the Bar for between 6 and 16 years; and (iii) have had biological children between 2016 and 2020.

What emerged from those interviews were the following consistent themes:

  1. Most of those interviewed were keen to take 2 to 3 months’ parental leave, though what ‘parental leave’ actually meant varied from interviewee to interviewee (which may be unsurprising, given the self-employed context). Most would not take on new cases in that time, do only the most essential items of work on existing cases, and try as much as possible to focus on the parental experience and e.g. not regularly check emails.  One of the older interviewees did, instead of taking periods off work altogether, simply wind down work significantly and so was probably, in effect, working part-time.  Another one of the older interviewees attempted to take 4 weeks’ parental leave for their first child but felt compelled to work on some matters during that time; and only felt able to take 2 weeks for the second child (but did manage to ‘switch off’, in that period);
  2. Whatever length of parental leave they took, all who were interviewed felt supported by Chambers in terms of Chambers’ culture and attitude to parental leave. Most interviewees had a proactive discussion with their practice managers (clerks), often initiated by the clerks themselves, around type and level/frequency of desired contact (or lack thereof) during parental leave, and the clerks always respected the wishes of the member.  As Paul Strelitz, one of the interviewees, put it: “I think we should be very proud that we have clerks who are committed to ensuring that new parents and new adopters have the space and time that they want”;
  3. Chambers’ parental leave policy underwent changes in 2019 that meant that an additional financial support element kicks in when at least 3 months’ parental leave (with a permitted break within that) are taken, which does appear to have led to male colleagues taking slightly longer periods of parental leave than they would have done historically – some of the interviewees also having had children both before and after the change. The policy may be seen as generous, but as interviewee Martyn Griffiths said “the best thing about the way our policy works is that because it can be done over a 2-year period rather than just 12 months, I could do it when we needed it- and at that point where mum goes back to work, the person she handed over much of the childcare to was me. It made her transition back to work easier; and on a selfish level I had loads of fun with our daughter” (NB: I would query whether that was selfish!);
  4. However, none of those interviewed felt able to take longer than 2 to 3 months’ parental leave (and some, much less), because of:
    1. Financial realities. All bar one of those interviewed were the major breadwinners in their respective family units.  All are married to professional women, in jobs varying from teachers to midwives to actuaries to equine physiotherapists and other lawyers; all of whom were employed at the time when at least one of their children was born and, whilst generally entitled to lengthy periods of parental leave, all bar one of those wives had (i) lower salaries than their husbands and, in any event, (ii) were not paid greatly more than statutory maternity pay.  Accordingly, the vast majority of my interviewed colleagues felt that they could not really afford to take more than 2-3 months off work; and
    2. Concerns over the impact on their practices in a wider sense. Despite colleagues in Chambers and the clerks being very supportive, and despite clients also being consulted and generally very supportive in the case of each of the interviewees, there was a fear that taking longer than a couple of months in one period or more than 3 months’ parental leave overall would lead to clients going elsewhere (within or without Chambers).  No doubt this is a fear that many women at the Bar taking parental leave also have, and historically have greater experience of.  It was noticeable that the two slightly older colleagues I interviewed (both of whom are now 40) were concerned at having more than a few weeks off in a row, let alone 2-3 months, because of the risk of instructing solicitors going elsewhere/becoming disgruntled with lack of access to their usual barrister.  Charles Raffin, one of those more senior colleagues who feared for the impact of parental leave on work, nevertheless said “I think people should be encouraged to take parental leave if they want to, and should be encouraged to speak to people in chambers who are dads already, and have a soft support network to turn to”;
  5. The latter point may be particularly affected by the culture in relation to parental leave for male lawyers at solicitors’ firms (solicitors remaining the source of the vast majority of work for members of Chambers), though different interviewees reported different attitudes amongst instructing solicitors’ firms to parental leave and particularly fathers taking parental leave. One of the younger interviewees (Louis Zvesper) said that he was repeatedly told by instructing solicitors, who were very supportive of his decision to take 3 months of parental leave in 2019, that they were “regretful, because they didn’t feel able to take as long a period of parental leave as he had been” – despite the fact that with e.g. shared parental leave rights the employed solicitors were, in theory, entitled to take lengthy periods of parental leave.  On the other hand, one of the more senior interviewees said that in his experience his instructing solicitors (bar one notable exception) had said that their firms were keen on employees exercising parental leave rights.  I wonder if those differing reports reflect the fact that my more junior colleague was generally speaking to instructing solicitors who were also quite junior and may have felt under pressure not to exercise their parental leave rights in full; whereas my more senior colleague was speaking to quite senior instructing solicitors who may have either been in management positions, or simply be more confident due to having more years ‘under their belt’;
  6. Most of the interviewees would have preferred to take longer periods of parental leave than they felt able to; and almost all of the interviewees’ wives would (so the interviewees perceived) have preferred their husbands to have taken a longer period of parental leave, either to provide additional support in the early stages of the child’s life or to enable the mother to return to work themselves sooner;
  7. For those interviewees who had children just before or not long after the first Covid lockdown was imposed in late March 2020, the sudden relative dip in court work (and switch to remote working) was certainly helpful in allowing them to have more and/or better quality parental leave than might ordinarily have been the case; or indeed to not take formal parental leave for as long but still be more available for caring for their new child.

Parental leave is also available in some tragic situations such as stillbirth, and was taken up by my colleague Simon Kerry for that reason in 2019.  He was kind (and brave) enough to speak to me about his and his wife’s experience, and how having the chance to take parental leave together (which was proactively offered by Chambers) in order to acknowledge their loss and attempt to come to terms with that loss, was crucial.  He said that Chambers’ “recognition of the birth, because it was one, and of the parental situation, because it was one, was very important”.  He took two months of parental leave and was able to travel to the USA with his wife for a 3-week trek, and prioritise their relationship without having to have the stress of work at the same time as both grieving and taking time together.  Thankfully, he and his wife now have a second child and he was able to take two months’ parental leave in an initial stint and then another month sometime later (within the overall 2-year parental leave period under Chambers’ parental leave policy).

In conclusion, whilst the interviews I conducted amounted only to a relatively small sample from just one chambers, they did suggest that attitudes to male parental leave have changed somewhat in the last five years, at least within our Chambers.  Younger male barristers appear prepared to (and to want to) take longer parental leave periods, and our Chambers’ parental leave policy certainly appears to facilitate and encourage that so far as possible.

Nevertheless, there seems to remain a wider problem of pay disparity and career advancement disparity between men and women which still seems, for practical and financial reasons, to prevent a more equal sharing of the privilege and responsibility that is parental leave, despite the flexibility that men in our chambers (and presumably many other chambers) are rightly being offered.  Progress has been made, but perhaps the next five years will see more men in chambers taking longer periods of parental leave, with that being seen as more widely acceptable (and which will, in turn reduce the burden on the other parent of the child).

Authors

James Hall

Call: 2000

Paul Strelitz

Call: 2005

Charles Raffin

Call: 2005

Martyn Griffiths

Call: 2011

Simon Kerry

Call: 2012

Louis Zvesper

Call: 2015

Disclaimer

This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.