The Wizard of the Family Bar

Chris McWatters believes that the FLBA Chairman will need all his diplomatic wizardry to deal with the fizzing brew of change facing the Family Bar


Profile

Stephen Cobb QC is Chairman of the Family Law Bar Association  (“FLBA”) and joint head of chambers at 1 Garden Court.
He is described in Chambers & Partners 2010 as “A top children’s Silk and a model to others in the profession.”
Stephen was Called to the Bar in 1985 (Inner Temple) and took Silk in 2003. In 2004 he was appointed to the Family Justice Council (and re-appointed 2006 to 2009), and appointed a Recorder (crime and family). In 2007 he was elected Fellow of the International Academy of Matrimonial Lawyers and he was Vice-Chairman of the FLBA in 2008/2009. He is a member of the Ministry of Justice Family Court Information Pilot Advisory Board and is authorised to sit as a Judge of the High Court (Family Division).

Stephen Cobb QC takes charm to a level of Harry Potter wizardry. Not only does he make you feel splendidly at ease, but when speaking to you, he reinforces his conversation with a carefully considered intellect that ensures you listen very closely to what he has to say. His style has clearly served him well as a barrister – his 2006 listing in Chambers & Partners mentions that once in court “he can charm the birds from the trees”. Just as well. As the current Chairman of the Family Law Bar Association (“FLBA”) he’s going to need all the charm he can muster, and maybe a little magic too. He’s facing a massive challenge.


Family Justice Review

Since the Baby P case two years ago, there has been a huge increase in the number of care applications by nervous local authorities. The courts do not have enough CAFCASS officers to cope with the increased demand. The resulting delays have put new strain on an already overstretched and underfunded system – a dangerous situation when the best interests of children need to be protected.
As a result, the government is stepping in with proposals to overhaul family justice. A Family Justice Review panel is in session now. In a general climate of cost-cutting, many of the proposals being mooted involve a major reduction in funding.

Cobb’s mission is to ensure that the quality of legal representation is preserved or even enhanced by reforms that will undoubtedly bring about radical alterations in the family law landscape. He is aware that the increased number of care applications has caused problems for the family justice system. “Delays in the resolution of disputes of course in themselves compound problems. Delay builds in additional costs. The whole question of funding for the family justice system hangs as a pretty dark cloud over the arrangements.”


Government cuts

The question of money looms especially large against the backdrop of government cuts. Separately from the government review, the way that family barristers are paid was due to change in November. These plans have now been put on hold. But whatever scheme is finally implemented, it is anticipated that there will be a reduction in payment. The fear is that cuts will lead to the most experienced practitioners leaving the profession, causing a brain drain of expertise just when the family justice system most needs to keep its wits about it.
“There is a large cohort of people who do family work because they find it fulfilling – professionally rewarding even if not financially rewarding. There’s a strong sense of altruism amongst the membership of the association. [But] the MoJ shouldn’t bank on that, nor should they take advantage of it.”


ProcureCo

These two issues would be more than enough challenge for most heads of the Family Bar to take on. But, today, a third – and enormous – change looms, in the shape of a revolutionary reform in funding and organisation. ProcureCo is an innovation planned for the entire legal aid Bar. It offers opportunities to the profession which will supplement or replace the familiar system, in which solicitors are the first port of call for clients and instruct barristers to perform in court. ProcureCo is a business model that will give contracting powers to barristers and permit forms of direct access to clients – either by competing with or partnering with solicitors to win legal aid contracts. Barristers will be able to use ProcureCo to win legal aid contracts, and these companies will be able to employ solicitors to do litigation work while the Bar gets on with the advocacy – turning the current order of things on its head. However, in reality, no one knows how the system will work, or which chambers, or solicitors, or combinations of both are likely to win the contracts on offer from the government. The Criminal Bar will be the first to experience this change. Family will be next up. Unsurprisingly, family barristers are looking at the anxiety sweeping the Criminal Bar, and wondering what’s in store for them.

The big question is how family barristers should position themselves to be included in the next stage of this game. At the moment, a family threatened with the removal of a child by a council will walk into a local solicitors’ firm to find legal help. Cobb recognises that these clients are unlikely to suddenly start walking into the Temple to find alternative legal representation led by barristers; there is no single “point of access” in family cases as there is in criminal cases. This may cause problems for barristers trying to compete for contracts with established local solicitors. But, Cobb believes, it’s time for barristers to think practically about how to reach out to attract those primary clients. “We do need to think more commercially and strategically about procurement options. And there is a real point for the Bar now to consider for the first time being the purse holder in relation to the contracts.”

Cobb is keen to stress the potential benefits of the ProcureCo model. “This could be a real opportunity for the Family Bar. We have encouraged people to find out about ProcureCo. There are bound to be those who are going to be resistant to change. But I think they ignore it at their peril.”


Civil tendering

As if that weren’t enough, there is a fourth ingredient in the already fizzing brew of change facing the Family Bar – the results of the LSC tender round for civil contracts for family solicitors caused widespread alarm during the summer. In the initial allocation, the number of solicitors’ contracts in family law was halved, from 2,400 nationwide to 1,300. In the judicial review challenge which followed, the tender process was declared unlawful. Cobb was concerned that many respected solicitors failed to obtain contracts. He also worried that “advice deserts” could emerge around the country because of the limited number of firms to whom contracts had been awarded. He said that the judicial review “... at least for the time being quells our concerns about access to justice for the vulnerable, but we are still in for a period of great uncertainty in the next few months while the contracting arrangements are settled.”


A Darwinian struggle

In the long term, the ProcureCo model could provide some remedy for the Family Bar. “If chambers are able to obtain contracts, they may be able to work with solicitors who don’t obtain contracts directly with the LSC; in this way we may be able in fact to spread the availability of solicitors through the ProcureCo model”. Nevertheless, with far fewer contracts available overall, a Darwinian struggle for survival of the fittest looms.

Cobb is concerned that detailed reforms in the funding of family justice shouldn’t all be tackled before the Family Justice Review is worked out to the satisfaction of all concerned.

“Spending cuts are inevitable, but it would be wrong for the government to make any further changes to the way in which family lawyers are paid or indeed to the re-tendering process until they know where in fact savings need to be made within the family justice system as a whole.”

The danger of getting the balance and pace wrong, he believes, would be a sacrifice of professional quality.

“One of the greatest risks always to cost-cutting measures in any field of legal aid provision is that the first casualty is quality. It’ll be the practitioners who are experienced, who have over the years developed expertise in the area who will not be able to continue to practice at the rates which are offered.”

“If the courts are populated by lawyers who aren’t truly expert in the field, that in itself is only going to be likely to lead to longer delays.”
That is exactly what the government, and the family justice system, want to avoid. Stephen Cobb will need all his diplomatic wizardry to ensure that the changes happen in the right order to benefit the Family Bar and those who rely on it for justice. No easy task. He could well have to reach for a wand.


Chris McWatters is a barrister at Garden Court Chambers and a member of Counsel’s Editorial and Policy Board

 

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Chris McWatters

Chris practises family and immigration law at Garden Court Chambers. He regularly contributes to Counsel and is a member of the editorial board. Before coming to the Bar, Chris worked as a journalist and TV scriptwriter.

Chris McWatters

Chris practises family and immigration law at Garden Court Chambers. He is a member of the Counsel editorial board. Before coming to the Bar, Chris worked as a journalist and TV scriptwriter.