Letting down the family

The proposals seT out in the recent consultation paper, Reforming the Legal Aid Family Barrister Scheme [CP12/08], disappointingly lack any recognition of the need to address significant problems in the family justice system brought about in many respects by inadequate funding; if its proposals are brought into effect, it is the concern of the Family Bar that they will inevitably exacerbate, not redeem, the blights on the family justice system '“ delay in the courts, increasing numbers of litigants in person, dilution and ultimate suppression of expertise. We are concerned that the family justice system is overstretched to the point of breakdown. This is a phenomenon with which our solicitor colleagues are all too familiar.

Radical cuts

The system as a whole is creaking under the pressure, criticism and complaint. Ryder J in a speech delivered for the 25th anniversary of the Butterworths Family Law Service (July 2008) referred to the fact that 'there has rarely been more critical comment about the [family justice] system itself'. It is our view that this is the wrong time to undermine those engaged on both sides of the profession who represent the most disadvantaged and vulnerable in our society at a time when they are most in need of effective representation.

It is essential that radical cuts of funding to those who practice in the difficult field of family law must not detract from the importance of obtaining the right decision about a child's future, nor increase the social costs of getting decisions wrong, which are, of course, immeasurably high. An appropriately funded legal aid system is essential for family justice; given the central role played by advocates '“ be they barristers or solicitors '“ in achieving justice for those involved in family breakdown, it is vital that advocacy services are properly remunerated.

We are acutely aware that solicitors doing publicly funded family work are not adequately remunerated. We recognise that when, in October 2007, the standard fee schemes were introduced for solicitors for civil advice, child care proceedings work, and family help (private) (advice and negotiation only), a large number of solicitors stopped doing the work. Many colleagues and friends who we respect left the profession. In many areas of the country, we are aware that the number of solicitors prepared to do publicly funded work (even in many large conurbations) has dropped to only a handful of practices.

Talent in short supply

The Bar has already experienced a similar exodus of talent. In 2001, at the inception of the Barrister Family Graduated Fee Scheme (FGFS), a number of experienced senior members of the Family Bar ceased to accept publicly funded work; in the report from Frontier Economics (commissioned by the Department for Constitutional Affairs), A Market Analysis of Legal Aided Services Provided by Barristers (March 2004) it was reported that

37 per cent of the solicitors surveyed said that they had had experience of being unable to secure a barrister; the implications were said to be 'a detriment to the advice received by the client' or 'an unacceptable delay'. For those solicitors seeking and failing to secure the services of a barrister, 54 per cent reported that the lack of availability of barristers was because the barristers 'had said that the fees [then paid] were unreasonable'. This was properly a factor in the restoration of the fees to a level which was commensurate with the complexity of the work.

When the scheme was revised in 2005 (to re-invest some of the cuts which had been too drastically made to the budget for the Bar), those barristers who had left did not return. It seems to us that those who have responsibility for the funding of the legal profession have in the past failed to recognise that the supply of the specialist practitioners cannot be turned on and off like a tap.

Expertise of the senior practitioners on both sides of the profession is built up over 20 years; if experienced practitioners leave they do not return. It is an irrevocable decision. This factor, coupled with the reduction in those coming in at the junior end, will mean that decisions now in relation to funding of family justice will have long term irreversible consequences, to the detriment of those who are most vulnerable '“ often children. We believe that this is a very high-risk strategy.

There has been a noticeable upsurge in litigants in person representing themselves in the courts, desperately seeking to cope with the stress of family breakdown exacerbated by the trauma of representing themselves in court proceedings. This inevitably leads directly to the lengthening of cases and the reduction in the number of negotiated out-of-court settlements. The consequent delay drives up cost and is detrimental to the welfare of children who are the subject of proceedings.

The President of the Family Division writing in the FLBA quarterly magazine (July 2008) said that 'unless there is an acknowledgment of the nature and extent of the tasks which are undertaken by family lawyers and that a reasonable rate of remuneration is required for these tasks, I have the utmost concern for the future quality of family justice. I am aware that many children's panel solicitors are considering whether they or their firms can continue practicing in family law and that a number have already taken a decision that they will be unable to do so. Similarly, the proposed reduction in the Bar's fees so as to provide a lower base line for future negotiations is likely to drive many barristers whose experience is essential to the system from practice, leaving the field to the young and inexperienced. It all comes at a particularly unfortunate time, given that a key aspect of the success of the PLO is the reliance of the court upon the (properly remunerated) skills of experienced advocates, both in relation to case management and in managing, supporting and advising highly disadvantaged parties.'

Access to justice and Article 6

There is a statutory duty under the Access to Justice Act 1999 to secure that 'individuals have access to services that effectively meet their needs' (s.4); this requires there to be available sufficient suitably qualified and experienced lawyers to undertake the work. Access to justice is an ideological and not an economically driven commitment. Many of the cases in which the family bar and solicitors specialise involve life/death-type decisions; these cases involve what for many of us would be the unimaginable prospect of permanent separation from one's own child. Article 6 of the European Convention of Human Rights and Fundamental Freedoms guarantees that 'everyone is entitled to a fair and public hearing within a reasonable time'. We firmly believe that cuts in funding for those who are the most vulnerable of our society, particularly in cases with such grave consequences, will have the effect of denying 'effective' rights of access to the courts; it is 'effective' access which art.6 guarantees. We suspect that it is only a matter of time before a litigant successfully claims a breach of art. 6 on account of the government's failure to provide due access to justice. In Re Webster [2007] 1 FLR 1146, Munby J made clear that art. 6 is intended, among other things, to promote confidence in the judicial process. This is a point that has repeatedly been stressed by the Strasbourg court (see also Prager and Oberschlick v Austria [1996] 21 EHRR 1, at para. 34). 'Regard must. . . be had to the special role of the judiciary in society. As the guarantor of justice, a fundamental value in a law-governed state, it must enjoy public confidence if it is to be successful in carrying out its duties.' We operate in a professional system which engenders frequent criticism in the broadcast and print media for its lack of openness and unfairness. In the circumstances, it would be highly damaging to produce a situation in which the family justice system becomes less open, less fair, and less able to challenge the decisions of social workers than this one.

Integrated fee scheme

The aspiration of the government to reduce the difference in the fees between barristers and solicitors does neither side of the profession justice. Any remuneration system needs to match payment to the nature of the work being undertaken. As we made clear in our response to the recent consultation, and indeed have said many times over the past ten or more years, we support the proposition that there should be an integrated scheme for payments for advocacy for solicitors and the Bar. In June 2007 the FLBA took the initiative and arranged a meeting with the Law Society, Resolution and the ALC with a view to presenting an integrated advocacy scheme to the LSC. It is

regrettable that this initiative was subsequently rejected by the LSC. We firmly believe that such a scheme should properly remunerate those skilled in advocacy having regard to complexity and length of hearing, recognising the underlying principle of equal payment for equal work whoever does it.

A vital contribution

Both branches of the profession face considerable and immediate challenges from cutbacks in public funding in family work. This is likely to affect many dedicated professionals. However, it is the vulnerable in our society who are most likely to be affected by the proposals. In these circumstances it is important that both branches of the profession work together wherever possible to seek to address the challenges.

At the opening of the Ontario Courts in 2007, Chief Justice McMurty commented in his report that 'legal aid is perhaps the single most important mechanism we have to turn the dream of equal rights into a reality. Indeed, our laws and freedoms will only be as strong as the protection that they afford to the most vulnerable members of our community. In affording this protection, legal aid does make a deep and essential contribution to our social fabric and indeed to our very way of life'.

The Family Bar is concerned that the government's current focus on budgets and cost control is diverting necessary attention away from the essential protection and assertion of individual rights and freedoms '“ fundamental to a civil, humane and just society under the law.