The case studies demonstrate the importance of appropriate representation for those going through the family courts. The FLBA argues it is vital that those who are going through what is a difficult process are supported by barristers whose level of seniority and expertise matches the gravity of the particular case. It is arguing for a system where fixed fees paid to barristers are graduated to reflect the complexity and demands of the case.
The case studies include:
- a case where the parents of a child had inexperienced representation in a Non-Accidental Injury case, and appropriate experts had not been instructed for the fact-finding hearing. Experienced counsel was enlisted, and instructed additional experts, who found new fractures suggesting an organic cause. Without experienced counsel there is a strong likelihood that the child would have been permanently removed from the parents.
- another where a member of the family bar was instructed to represent a mother in a case involving an application for care orders in relation to all four of her children. The case involved 22 hours preparation over a weekend and resulted in the children being returned to their mother. Under the proposed fee regime, the barrister could not economically have undertaken this case and without proper representation these children would likely have been adopted.
- a third where a barrister represented a 17 year old mother, who was facing a removal and adoption care plan. The mother had gone through residential assessment and treatment, where she flourished. However, the Local Authority then changed the proposed care plan to removal and adoption. With the help of experienced counsel it was revealed that the Local Authority’s decision-making process was badly flawed and an independent living care plan was put in place. Mother and baby are now living together in their own rented accommodation and doing well.
Commenting on the case studies, Lucy Theis QC, the Chair of the Family Law Bar Association, said:
‘These case studies, provided by barristers working at the front line of the family justice system, amply demonstrate the very real difference their advocacy skills can make and the problems which will be caused by the proposed cuts to family legal aid. Family barristers are expert family advocates who work long hours and are absolutely committed to working in the best interests of their clients. They are not fat cats, they are public servants whose work is a vital part of an effective and fair family justice system; there is no doubt that the proposed cuts to family legal aid will increase the risk of miscarriages of justice. The Family Law Bar Association would like to see the proposed fixed fee scheme replaced by a graduated fee scheme, which rewards the complexity of the case rather than what is proposed, which grossly over-rewards the less complex cases at the expense of the more complex ones. Our proposals will not increase the outgoings from the public purse, and they will avoid the consequences of an ill-thought-through fixed fee scheme which puts the most vulnerable in our society at increased risk of harm.’ Desmond Browne QC, the Chairman of the Bar, said: ‘Nobody reading these studies can be left in any doubt about the expertise and commitment of the family law bar.
It will be disastrous for the family justice system if family law barristers, and law students considering a career in this field, are deterred from doing so by cuts which are so savage that they make practice uneconomic. The Bar Council has been working determinedly to increase diversity at the Bar, and eventually on the Bench. All this work will be wasted if cuts in fees on the scale proposed drive women and ethnic minority practitioners away from doing publicly funded work. Their devotion to this area of practice is universally acknowledged.’ Recent research has shown beyond any doubt that already the existing pressure on the legal aid budget has resulted in fewer and fewer solicitors and barristers being willing to do this work. In the absence of local firms to provide advice, vulnerable clients are being forced to seek representation from solicitors often hours away. The latest proposals for cuts can only exacerbate the current legal aid deserts. Experienced barristers are needed to take on the complex cases where women and children are at risk of abuse. Recent tragedies have shown the fatal risks if these cases are not properly conducted. Supported by the NSPCC, who share our concern about the risks, we will be renewing our plea to the LSC and to Ministers to think again.’