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Concern over new family legal aid fixed fees

Date:21 OCT 2009

The Ministry of Justice and the Legal Services Commission have today published new fee structures for family legal aid that will see hourly rates replaced with fixed fees.

Family lawyers have warned that the new fixed fees are likely to mean a mass exodus of lawyers from family legal aid and undermine access to justice for ordinary families. The number of family legal aid practices in the country has already dramatically dropped, from 4,500 in 2000 to 2,800 in 2006.

David Emmerson, Chair of Resolution's Legal Aid Committee said: "The potential of these new fees to cause substantial and long term damage to the provision of family legal aid for separating families has been grossly underestimated.

"Some of these fees represent a cut of more than 40 percent to hourly rates that have already remained static for the last ten years. Faced with this uneconomic scenario there is a very real danger that firms will walk away from legal aid work, further undermining access to justice."

Lawyers estimate that for a very simple child contact case taking around 14 hours, a legal aid firm would currently receive £960 on the basis of the hourly rate. The new fixed fee would be just £471 - a cut of more than 50 percent.

Similarly a legal aid firm managing a straightforward divorce finance case which goes to full hearing, would be paid £2,106 at present - this will reduce to £1,299 under the new fixed fee regime - a cut of almost 40 percent.

In July the government postponed the publication of the final fee schemes for family legal aid, following an outcry from practitioners when they were consulted.

The Government's original proposals were heavily criticised by family lawyers and judges who warned that they would lead to parents and children in complex cases being badly represented or not even represented at all. At the time, the Justice Committee criticised the LSC not only for its "flawed, weak and inflexible" approach but also for its "conclusions first, evidence after" approach to policy-making.

But the scheme has been restructured and revised following input from the leading practitioner groups and intervention by the President of the Family Division.

The new fees are broadly welcomed by the Association of Lawyers of Children, one of the practitioner groups involved in improving the scheme.

ALC co-chair, Piers Pressdee, said: "The priority for family legal aid must be child protection. These are complex, demanding cases, involving the highest of stakes, and requiring a high level of expertise to conduct properly. We welcome the Government's recognition of that priority and reality, together with the significant improvements to the scheme that have now been made.

"While we still have concerns about some elements of it, the scheme now proposed is immeasurably better, fairer and more practice-reflective than that originally devised. That shows the benefits of collaborative working within the family justice system."

Announcing the publication of the new fee structures, Legal Aid Minister, Willy Bach said: "Approximately £580 million was spent on family proceedings in 2007/08, and I am determined that our finite legal aid budget is sustainable and prioritised effectively, to help those most in need.

"The reforms published today provide a sensible way forward, which responds to comments made during the consultation process".