Evidence submitted by The Family Law Bar
Association
INTRODUCTION: FAMILY
LAW
1. The Family Law Bar Association ["FLBA"]
supports the Response that has been prepared by the Bar Council.
The purpose of this document it to provide the Committee with
the background to the current situation with respect to legal
aid for the Bar in family cases.
2. The FLBA has some 1,600 members who practice
either partly or wholly in the field of family law. This figure
represents about 15% of the whole practicing Bar.
3. Family law is a field that covers a wide
range of work. The core activities are advice and/or litigation
relating to:
— division of assets and income following
divorce or separation;
— "custody" disputes following
separation of a child"s parents;
— protection from domestic violence;
— care proceedings relating to a child
who is alleged to have been abused;
4. In addition family lawyers will undertake
work in a wide range of cases including those involving:
— consequences of IVF treatment;
— international child abduction or
other international child disputes;
— medical treatment/right to die;
— mental health issues falling outside
the Mental Health Act;
— inter-country adoption;
— responsibilities of local authorities
with respect to children in their care.
5. It will be readily understood that the
Human Rights Act 1998 has had a significant impact on all areas
of family law, consequently all family lawyers are now "human
rights lawyers" and clients need and courts expect a human
rights perspective to be considered in appropriate cases.
6. Family law cases are funded either by
clients paying privately or by legal aid. Unlike our brethren
in the field of crime, there is therefore an option for a family
barrister to earn part or all of his/her income from privately
funded work [see "Deeming" below].
THE IMPORTANCE
OF LEGAL
AID IN
THE FAMILY
LAW SPHERE
7. The importance to the individual parties
who find themselves involved in the types of dispute listed above
will be obvious. From the perspective of an individual's private
and family life, it is hard to imagine issues that are more important
than those affecting the relationship with their children, their
own personal safety or their personal finances. For example in
care/adoption cases a parent and child face the prospect of permanent
separation, not just during childhood, but for the remainder of
their lives—surely there is no more Draconian order available
to a court in any other form of proceedings.
8. There is a vital public interest in ensuring
that family law disputes are determined effectively and with adequate
representation for each party. The consequences of a family case
being determined on inadequate legal advice or after an unsatisfactory
hearing may have significant long term consequences that may impact
on a far larger group than simply the litigants involved in the
proceedings. For example, cases involving children which do not
produce an outcome that is in fact in the best interests of the
child may well lead to social, personality, relationship and behavioural
problems in the child for many years to come and have an impact
on that individual's ability to be an effective and safe parent
in due course.
9. The individuals who need legally aided
representation in these cases are largely ordinary law-abiding
members of our society. They may well be facing court proceedings
for the first and only time in their lives—court proceedings
which will deal with matters that may be of profound personal
importance. There is a legitimate expectation that the state will
provide adequate representation and advice in these circumstances.
10. Even where the family wealth looked
at as a whole may be substantial, there may still be a need for
one party, usually the wife, to be in receipt of legal aid so
that she may contest matrimonial proceedings against her husband.
If the vast proportion of the family wealth is in the name of
the husband, the wife may well qualify for legal aid. She will
require experienced solicitors and counsel to take on the team
that her husband will be able to assemble by paying privately
for his representation. Unless she is able to instruct a similarly
strong team the "playing field" which the state will
have provided for her to have a fair trial will be decidedly uneven.
Further, in such cases, at the end of the proceedings it is highly
likely that the wife will either achieve an order for her husband
to pay the costs, alternatively her debt to the Legal Services
Commission will be secured as a charge on any property that she
has recovered to be repaid (with interest) in due course. The
recent announcement by the Minister, David Lammy MP, that he intends
to bar "millionaires" wives" from receipt of legal
aid, whilst no doubt pleasing the readers of certain newspapers,
is based upon a misunderstanding of such cases.
RECENT CHANGES
IN FUNDING
THE WORK
OF THE
BAR IN
FAMILY CASES
11. The Bar has for a number of years accepted
that there was a need for the Government to have greater control
over the "spend" on legal aid in family cases. Prior
to 2001, the costs in all family cases in the county court and
above were assessed after the event by a District Judge who would
"tax" the costs bill and certify what fees were to be
paid out of legal aid. Whilst there was a degree of uniformity,
the reality was that the amount that a legally aided lawyer was
paid for a piece of work varied from case to case and from judge
to judge. It was impossible for the LCD and LSC to predict, let
alone control, the expenditure on individual cases.
12. The Bar therefore took part in discussions
with the LCD and LSC over a number of years to develop and perfect
a system of graduated fixed fees for family advocacy. The expectation
throughout was that the scheme would cover both barristers and
solicitor advocates (who are undertaking precisely the same role
when they appear alongside a barrister in court).
13. On 1 May 2001, the first Family Graduated
Fee Scheme ["GFS"] was brought into force. This is not
the place to descend to detail, but the Bar was profoundly dismayed
to find that:
(a)
the scheme that was introduced was an emasculated
form of the scheme that the Bar and the civil servants had spent
so long developing;
(b)
the "figures in the boxes" were substantially
lower than those that had hitherto been discussed;
(c)
the scheme only covered barristers: solicitors remain
remunerated under the "old" scheme. The State therefore
pays a solicitor advocate at a substantially higher rate than
a barrister for performing exactly the same function.
14. At the time that the new GFS was introduced
the then Lord Chancellor announced that his aim was to achieve
a reduction in the rate of pay for barristers on family legal
aid of 5%.
15. The Department promised that, as the
introduction of the GFS was an entry into virgin territory, there
would be a comprehensive review of the operation of the scheme
once it had been in operation for 12 or 18 months.
16. The effect of the GFS upon the family
Bar has been extensive. Barristers quickly realised that the cut
in remuneration between the old legal aid scheme and the new GFS
was far greater than the 5% target figure. Further, the scheme,
whilst "graduated" in name, was in reality pretty flat,
with the result that a senior junior barrister might go off to
undertake a heavy case in the county court only to find that the
rate of pay was broadly similar to that paid to the new member
of chambers who had gone to present a simple case before the magistrates.
"UNDEEMING"
17. The Committee will be familiar with
the "cab rank" rule that is an important part of the
Bar Code of Conduct. A barrister may not pick and choose his/her
clients. The "cab rank" rule requires a barrister to
accept a brief that is offered if the work is in his area of practice,
if there is no professional conflict or similar matter that would
justify refusal and provided that the rate of remuneration for
the work is "reasonable".
18. Prior to 2001, it was also part of the
Bar Code of Conduct that any legally aided work was automatically
deemed to be reasonably remunerated ["the deeming provision"].
The effect of the cab-rank rule together with the deeming provision
was that a barrister could not refuse to undertake work simply
because it was legally aided.
19. Following the introduction of the family
GFS, barristers quickly realised just how badly paid the new scheme
would be for anything but the most straightforward case. It was
obviously no longer tenable for the Bar Council to place a professional
obligation upon barristers to accept instructions at rates of
remuneration that were palpably incapable of being characterised
as "reasonable". Consequently, in relation to family
law work, the Bar Council revoked the "deeming provision",
with the result that a family barrister could henceforth decline
instructions in a family case on the grounds that the legal aid
payment was not reasonable remuneration.
Has the Family GFS Affected the Supply of Barristers
doing Legally Aided Work?
20. The short answer to the above question
is plainly "yes". There has been a widespread move by
a substantial number of barristers away from legally aided work.
Almost by definition the barristers who have given up legal aid
work include those who are more established and successful and
can readily attract privately paying clients.
21. The reasons for dissatisfaction with
the GFS are many and varied but basically boil down to two factors:
(i)
the structure of the scheme (ie it is too flat and
does not reward complexity and hard work); and
(ii)
the rate of pay is substantially lower than that
paid under the old legal aid scheme.
22. On the latter point the Department now
accept that the family graduated fee scheme has delivered an overall
cut in the region of 11-13% rather than the intended 5%. In some
areas of work, particularly in ancillary relief work (which deals
with homes, pensions, other capital and maintenance after separation
and divorce) and private law children's cases (which involves
disputes about children which do not involve Local Authorities)
the cut had been in the region of 20-25%. There is good evidence
that the impact has been very severe throughout family work on
skilled experienced junior practitioners undertaking the more
complex cases.
23. As a result there is growing evidence
that the more able and senior practitioners are declining to undertake
cases to an extent that to solicitors and the judiciary there
is clear evidence of a lack of representation at an appropriate
level in some cases. A recent nationwide survey by Professor Gwynn
Davis of the experience of legal aid solicitors in finding a barrister
to undertake cases has lead Prof Davis identifying a `flight'
by the bar from undertaking legally aided family work.
24. This leads to injustice. It can also
lead to increased costs when, through inexperienced representation,
cases do not settle or take longer because issues are not properly
identified.
THE DCA/LSC REVIEW
OF THE
FAMILY GFS
25. The Department, the LSC and the Bar
have engaged in the promised review of family graduated fees.
The process formally started in July 2002 and concluded with the
Bar submitting its final proposals for reforming the scheme by
the introduction of adequate graduations to reflect complexity
and the burden of work in particular cases. The Bar also seeks
a correction to the rates of remuneration so that the scheme hits
its stated target of the old 2001 legal aid rates less 5%.
26. It is right to record that the review
has been conducted by the Bar team with civil servants from the
DCA and the LSC in a spirit of cooperation, in which it has been
possible to have detailed and productive discussion about the
operation of the scheme.
27. Despite the passage of over six months
since the submission of the Bar's final proposals, there has been
no formal response from the Department, save for an announcement
on 31 July that the Bar's structural proposals (with some minor
exceptions) have been accepted by the Government.
CONCLUSION
28. The Bar is committed to providing independent
representation for all those who require it.
29. It is essential for the interests of
justice and for the wider needs of families and society in general
that legal aid is available for those who need it and that the
remuneration package for legal aid for family lawyers is sufficient
to ensure an adequate supply of specialist advocates to undertake
this work.
30. The Bar has long accepted the need for
Government to gain greater control over the legal aid spend and
to be able to predict with greater clarity the size of that spend
on a case by case basis. For this reason the Bar has cooperated
fully with the Department to develop a graduated fee scheme for
family work.
31. It is highly regrettable that ministerial
decisions at the time that the scheme was introduced both emasculated
the structure that had been carefully negotiated and also radically
reduced the rate of payment.
32. The result has been a widespread and
sustained "flight" of barristers away from work which
is no longer economically viable in many cases. It has also deterred
otherwise interested and good young barristers from choosing to
specialise in family work.
33. The ultimate consequence is that those
who need skilled representation in these important and sensitive
cases may no longer be able to find it.
The Family Law Bar Association
2 February 2004
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