Family Crisis

The family Bar is at breaking point, warns Desmond Browne QC

There is no possibility of writer’s block this month: very high cost cases (VHCCs) and proposed further cuts to family legal aid funding from 2010 have dominated the agenda.


A week in the life of the family Bar

In the third week of October 2008, Dr Debora Price and Anne Laybourne of the King’s Institute for the Study of Public Policy examined in detail a week in the life of the family Bar. The research, commissioned by the Family Law Bar Association (FLBA), looked at 1,600 barristers up and down the country doing some 5,000 cases. At that time, the FLBA was confronted with the first round of cuts, £13m over two years (over 13% across the board), and wanted hard statistical evidence that the system of family legal aid was at breaking point. Then, just before last Christmas, came a second blow—the Legal Services Commission (LSC) proposals for further cuts, which, according to Professor Chalkley, would mean cuts of 20% to 30% across the board. Fees for some cases would be reduced by double that rate.

The importance to society of the work done by the family Bar cannot be in doubt; the Bar encounters allegations of abuse in 62% of its family cases. The consequences where advocacy fails hardly require description: a child returned to an abusive home or removed from innocent parents because of mistaken medical opinion. The report shows what anti-social hours family barristers work: 63% work on Sundays for an average of 5.3 hours. There are not many members of the Lord’s Day Observance Society in the FLBA.
Median taxable profits for family barristers are £66,000 a year (without any allowance for pension provision or holiday pay). Many, of course, earn far less. There are no fat cats. I could not help noticing that the Ministry of Justice official ultimately responsible for the Offender Management IT project being delayed three years and trebling in cost to £690m, was paid £150,000 a year (the Times, 12/3/09).


Future intentions at the family Bar

Across all cases median gross hourly pay rates for privately funded cases are about twice the rate for legal aid graduated fee cases. Already local authorities pay more than graduated fees. The King’s Institute study reveals that over 80% of barristers were intending to change their practices even before the proposals for the second round of yet harsher cuts. Inevitably those regarding legally aided cases as no longer economic are predominantly senior practitioners, whom the system cannot afford to lose. In the face of the 13% cuts, 40% of barristers over 16 years’ call indicated their intention to stop or reduce greatly the number of public law final hearings they undertook.
More disturbing still is likely to be the adverse effect of the new round of cuts on the retention of women in the profession. At the press conference to launch the King’s Institute study one pregnant practitioner said that cuts of 20–30% would starve her of what was needed to pay for child care and prevent her return to the profession after maternity leave.

Leading parliamentary opposition

Under the unflagging leadership of Lucy Theis QC, the FLBA is mobilising parliamentary opposition to the proposed cuts. As I write, the latest news is that both the NSPCC and the Association of Lawyers for Children have joined the Bar Council in asking the Commons Justice Select Committee to investigate the current state of the family justice system, and we will shortly be briefing the Committee. In the meantime do please respond to the second consultation paper. The response period has been extended to 3 April 2009, after the discovery of serious deficiencies in the LSC’s statistical data, which need to be corrected. And, wherever you are in the country, do engage with your constituency MP: write or visit their surgery. Tell them exactly why you are so concerned and urge them to write to the Ministry to ask the Government to think again.


VHCCs

For once VHCCs have had to take second place to a yet more pressing issue. The extended consultation period ended on 4 March. By that time it was clear that the Bar was not enamoured by a new unit-based system and believed that the scheme as a whole was likely to produce lower fees. The Criminal Bar Association’s view was that the profession would prefer an extension of graduated fees, with a hybrid scheme to deal with mega-cases. This is not, however, one of those consultations where the juggernaut rolls on when the consultation ends. The Ministry and LSC have learnt the lesson of January 2008 and realise that any new scheme must command the consent of the profession. To this end, Richard Carey-Hughes QC, Abbas Lakha QC and Simon Csoka will be joining the Steering Group. Work will therefore continue, but it will be necessary for the Ministry to extend the contractual period. This will be for 12 months, since it can only be done once. It was made clear at the meeting with the Lord Chancellor on 24 February, that that extension will be terminated as soon as the revised scheme is agreed. So, it is all hands to the pump.

Desmond Browne QC is Bar Chairman