Family Law

Interview by Hugh Logue, Legal News Editor

It is a turbulent time for Lucy Theis. As Chairman of the Family Law Bar Association (FLBA), she is leading a campaign against the Government over plans to further cut the family legal aid budget.

The FLBA recently published a survey, The Work of the Family Bar, that claims that the family bar is at 'breaking-point'. According to the survey, by Debora Price and Anne Laybourne, of the King's Institute for the Study of Public Policy, if proposed legal aid cuts happen, over 80% of family barristers will change their practices. Leading children's charity the NSPCC, who added their support to the campaign this week, has said that "these are precisely the specialists society needs if the courts are to be able to make the right decisions about when a child needs protection".

Earlier this month several hundred barristers gathered to protest in London and an additional 250 barristers joined over video-links from 12 centres around the country. Lawyers and the NSPCC also called this week for a Parliamentary inquiry into the state of the family justice system. Given the clear anger felt amongst family barristers, I asked Theis whether family barristers would be prepared to take direct action if their fees are dramatically cut.

"We will continue to get our message across in a clear and coherent way, the government has just got to understand that the family bar cannot survive on what they're proposing. That expertise will be lost and it is not easily replaced", she said.

"I think that the evidence from the survey is that people will leave doing this work. It will be with huge sadness because most of the FLBA membership who undertake publically funded work are deeply committed to doing this work and put in hours of work to conduct these cases. It will because there is no choice, it will simply not be economic bearing in mind the demands that the job makes".

An example of a family barrister who will be forced to quit practice is upcoming barrister Belle Turner. She is a leading junior at 4 Paper Buildings and was cited in the Legal 500 2007 as one to watch at the family bar. However, she says that if the proposed cuts go ahead, she will not be able to afford to come back to practice after her maternity leave because of the additional costs of child care. "This is a huge loss, she is someone who has seven years of experience under her belt and is a very able practitioner", says Theis.

The FLBA's dispute intensified in December when the Government unexpectedly revealed proposals to cut family legal aid in some cases by as much as 55%, having previously indicated that the cuts would around 15%. The announcement caught the Bar Council and the FLBA by surprise who were not informed of the revised proposals until they were announced in a consultation, Family Legal Aid Funding from 2010. Has there been a breakdown in dialogue between the FLBA and the Legal Services Commission (LSC)?

"We have maintained a strong and constructive dialogue with the LSC and I think that's extremely important that continues", says Theis. "But the message doesn't seem to be getting through in relation to what they are proposing. They often change the ground rules. For example in their consultation paper in June 2008 they proposed cuts across the board, ie across all categories of work. Then just before Christmas they said they wanted the burden of those cuts to fall on two particular categories; private law and ancillary relief. It seemed to us thatwas an unprincipled position to take; there are vulnerable people in each category of work and you can't say that one category should take the full burden of the cuts."

In looking for ways to solve the legal aid funding crisis, the Government has homed in on payments made under the Family Graduated Fee Scheme, which they claim is now £26m per year higher than it was five years ago - rising by over 30% from £74m to nearly £100m. Payments to family barristers now represent 10% of the entire civil legal aid budget. What does Theis propose to solve the crisis?

"Graduate the scheme, it's quite simple. It's the argument that we succeeded on in 2001 and the government accepted the principle. You need to have a scheme that does not over reward the simple cases and properly rewards the complex cases. Then you actually have a tiered system so that the five minute cases are paid because they are a five minute case and the five day cases are paid because they are a five day case. But at the moment they have one fee that covers five minutes and five days. It's just mad and frankly irresponsible".

Obviously there has to be a budget for legal aid, and that budget has to be controlled, I ask Theis what the FLBA proposes to prevent the legal aid spending getting out of control.

"There's a significant issue about the data at the moment, but putting that to one side - if the budget is £150million or £120 million for advocacy we can work out a scheme and keep its operation under review. Prof Martin Chalkley, who advises the Bar on the statistics, is very experienced with many years of fee negotiations with the government. Once they have cleaned the data and we all have confidence in it I am confident we will be able to devise a scheme. It is unfortunate the LSC did not take up our offer to continue to work with them and keep the fee scheme under regular review in 2005. The Kings survey report gives us invaluable evidence on the question of graduation. I remain hopeful that we will be able to devise a graduated fee scheme that will properly reward cases according to their complexity and we can monitor its operation. It's not rocket science".

In response to the FLBA's concerns, the Government argues that if they do not act to control rising average case costs, then they will be required to make other cuts to the civil legal aid budget. This could mean reductions in client eligibility or the scope of the civil legal aid scheme, and reductions in the numbers of people helped. This, they claim, would compromise access to justice more than reducing barristers' fees.

However, in 2005 the FLBA and the LSC agreed to meet every six months to assess the family legal aid budget with various experts but the LSC failed to maintain the ongoing reviews. As a result, Theis thinks that the budget crisis has been caused in great part by incompetent LSC management who she believes only lurch from one sort of crisis to another instead of properly monitoring the situation.

"They actually need to manage what they do better than they do at the moment. They point the finger at the practitioner in relation to the costs getting out of control, but there are real question marks over the quality and accuracy of data upon which they make these assertions. To impose the cuts they propose will only increase costs; cases will take longer as there are more litigants in person; cases will return to court if they are not dealt with effectively at an earlier stage; there are real risks of serious miscarriages of justice - it is so short sighted and will be much more costly in the long term. The practitioner groups told them in August, when the LSC canvassed with us what they were proposing to do, that it would not work; they didn't listen and carried on regardless and produced a huge consultation paper making these flawed proposals".

The Bar Council and the FLBA have repeatedly claimed that "vulnerable women and children" will be put at risk as a result of cuts in legal aid pay. This is fundamentally a pay dispute so should we to take such alarmist claims seriously?

"To continue to make the cuts they propose will put children, in particular, at increased risk", Thies says.

"Anybody who is involved on a day to day basis in the family justice system at the moment sees the increased number of litigants in person and people who are not getting proper advice either because they can't get it or because they can't afford it; that has to be directly connected with the availability of public funds. It's very short sighted and it's very blinkered because the cost of not having that person properly represented or that child properly represented has a disproportionate cost in other aspects of society, the health budget, the mental health budget and the public interest in protecting the most vulnerable".

The survey sought to dispel the image of 'fat cat barristers' by revealing that family barristers earn a relatively modest professional income compared to similarly qualified jobs - a quarter of them earn less than £44,000 a year, and half less than £66,000 a year. Is the FLBA worried that the Government might try to draw parallels between 'fat cat barristers' and the current criticism of senior bankers to gain more public support for legal aid cuts?

"I hope what we've done by producing this report is to develop a more informed debate than the usual response by this government of 'fat cat lawyers'. If they want to go down the 'fat cat lawyer' route let them go down it but the Kings survey demonstrates that these are not fat cat lawyers. It ill behoves this government who it appears could have taken some steps to stop or reduce Sir Fred Goodwin getting his huge pension; if they'd delayed his retirement by two or three years, they wouldn't have had to bring in the cuts to cases regarding child protection.

"That perhaps puts this governments true priorities into perspective."

Family law barristers and other interested practitioners who wish to express their opinion on this issue can do so by responding to the LSC's consultation, Family Legal Aid Funding from 2010, which opened on 17 December 2008 and now closes at midnight on Friday 3 April (extended from 18 March). Practitioners can respond to this consultation online by clicking here.