Why I have a problem with the Family Law Bar Association

Man Hanging on a Scale While Another Man Fills Dish

The ‘May fees update’ from the Family Law Bar Association has now hit our email boxes.

The FLBA warns us in no uncertain terms to take heed of the proposed changes for public funding in criminal cases set out in the government paper ‘Transforming Legal Aid: delivering a more credible and efficient system‘ , and to see this as a “far reaching” proposal that may go on to deny ‘the most vulnerable members of our society access to specialist legal advice’.

Clive Baker, in his detailed response to the government paper links back to the effect of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). There  he cites a cut of £350m per year affecting 600,000 people. He suggests that  LASPOA was the start of ‘work in progress’ to trim the legal aid budget for family work rather than the end of the matter.

So, has the FLBA got it right. Is Armageddon just round the corner for both the legal profession and the public they serve?

Chris Grayling, Lord Chancellor and Secretary of State for Justice subscribes to a simple view concerning the funding of criminal cases,

“Over the past decade, the system has lost much of its credibility with the public. Taxpayers’ money has been used to pay for frivolous claims, to foot the legal bills of wealthy criminals, and to cover cases which run on and on racking up large fees for a small number of lawyers, far in excess of what senior public servants are paid. Under the previous government, the cost of the system spiralled out of control, and it became one of the most costly in the world”.

The blogger has memories that exceed the ‘past decade’ and is tempted to say that since public funding has been available ‘it has always been thus’. Indeed, the blogger’s favourite legal friend Matthew Shardlake interfaced with the same frivolous claims, wealthy criminals and exploitative lawyers in the 16th century. It could be said that ‘where there are lawyers, there will always be conflict’.

The doomsday practitioners gather sustenance from Lord Justice Ward in Wright v Michael Wright Supplies Ltd [2013] EWCA Civ 23416, who at para 2 addresses one of the consequences of withdrawing public funded legal advice:

“What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person. …. how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved”. ” It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. …. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.”

But an essential question is not whether the court is able to cope with litigants in person, but whether the system should direct them there as the most appropriate venue to resolve their dispute?

Blog readers by now will know of my views on the importance of mediation and private arbitration. You will also have read of my views about the relevance of an adversarial process in family disputes, and questioning the need for parents in conflict to have ‘party status‘.

Has Lord Justice Ward missed the point as he reaches his 18th year aboard the Court of Appeal? Is it necessary, or even advisable to have lawyers directing proceedings from the beginning of a dispute to its end? And should the public carry the bill?

Should he not reflect back on Lord Woolf’s comments in Cowl v Plymouth (2001) EWCA 1935 at para 25:

Without the need for the vast costs which must have been incurred in this case already being incurred, the parties should have been able to come to a sensible conclusion as to how to dispose the issues which divided them. If they could not do this without help, then an independent mediator should have been recruited to assist. That would have been a far cheaper course to adopt. Today sufficient should be known about ADR to make the failure to adopt it, in particular when public money is involved, indefensible”.

There is something singularly unattractive about a profession as well paid as ours, raising principled arguments concerning the withdrawal of our publicly funded income.

Whilst the points are well made, surely the art now is to raise them subtly, record them, and work positively and creatively with a popular, democratic idea. Should it fail, of course we will be there to pick up the pieces.

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5 comments on “Why I have a problem with the Family Law Bar Association

  1. James says:

    At last a reasonable outward looking article on the legal aid cuts. The self interest and insular attitude elsewhere by lawyers to date simply reinforces the tax payers disgust at what they see as the family law gravy train.

  2. Clive says:

    Hello, I’m the Clive Baker in question. Until today I was not aware that my document had even been seen by the FLBA, let alone commented on here (despite my best efforts, I do not seem to be able to get the FLBA to send me any emails).

    Nowhere in the papers do I decry mediation, suggest there are no savings to be made or advocate wholesale provision of public money and Court time to pointless disputes. Indeed in my own practice I regularly recommend mediation and other alternatives to Court and am wholly supportive of attempts to divert as many cases as possible away from the Court system. Look at my own website and you will see that under the “Do I need a lawyer?” I give some very clear advice about avoiding court at almost any cost. I can honestly assert that I have never advised fighting a pointless case.

    The large part of the paper deals with the proposals for Criminal funding, for which the Government has chosen to throw public money at big business at the expense of examining other more reasoned proposals for cost-cutting or carrying out any real analysis of the effects of its’ proposals. Neither do I like the fact that the government repeatedly misinforms the wider pubic about the amount lawyers who do legal aid work get paid, what is involved and how much money it costs. I’m not going to repeat the contents of the paper here, the link above lets you read it in full.

    However, I take issue with the suggestion that “There is something singularly unattractive about a profession as well paid as ours, raising principled arguments concerning the withdrawal of our publicly funded income.”

    First, “as well paid as ours” may apply to some but certainly not all, and rarely those who do legally aided work.

    Mostly, however, it is the suggestion that those who do work funded by tax payer’s money cannot comment upon the rationale of that funding or the proposed changes. Arguments about principle may rightly be viewed as being skewed by self-interest, but I trust readers to evaluate the points made from their own perspective, not mine. I accept without reservation that the general proposition made on this website that mediation would be a better way of resolving many family disputes despite (or perhaps because) the author is a trained mediator. I would not assert that such a view is ‘wrong’ or worse should not be stated because of the possible inherent self-interest in promoting such a cause.

    A principle is a principle, no matter what mouth it comes out of. Given how downright dishonest Chris Grayling et al are about the whole thing I make no apologies for producing a counter-argument in a minor attempt to stand in the way of the (publicly funded) government press and propaganda juggernaut that regularly flattens all sensible debate before it. Should I apologise because I have some (mostly tangental) interest in the outcome of that argument? Not, I think, if I make my interest clear. Am I barred from adding to the debate, despite my own intimate knowledge of the effects of the changes mostly, it has to be said, on other people? I would hope not.

  3. Clive, you make a good point, and perhaps I am in error in interposing your excellent analysis between two paragraphs that relate to the FLBA. In the piece I am not critical of individual commentators, who like you and me, have the right, responsibility (and perhaps duty) to express their considered views. In fact, I found your analysis particularly helpful and informative, hence the inclusion with the link.

    I am concerned that the FLBA as an organisation is quite so prominent as a pressure group. I see its task as setting out cogent arguments, rather than promoting petitions. James’ comment is but one of many advanced by the public who are critical, not the informed views of individual lawyers, but the potential conflict of interest facing the bar association.

    There is a balance between seeking to inform and pressing to persuade. When, as a profession, we move from the one to the other, we will inevitably face the response “well, they would say that, wouldn’t they?”

  4. Clive says:

    Okay, I agree, at least with the last two paragraphs (modesty prevents me commenting on the first).

    I should make it clear that I am not a wholesale supporter of ‘legal aid’ for all. Indeed, I have witnessed many a family case where arguments about whether children should be dropped off at McDonalds or Burger King have caused me to wonder how on earth anyone could justify paying two trained professionals to waste their time on such trivia together with the thought that the adults involved would not be having the argument if they had to pay for it themselves.

    However, I am concerned about where the line has now been drawn. A Government that proposes legislation to legally enshrine the right of a parent to be ‘involved’ in their children’s lives (Children and Families Bill) but then does not supply or worse remove a system for following through on that promise (court based or not) is, in my view, disingenuous to say the least. I am not at all convinced that an extra £25m for mediation comes close to compensating for what has been taken away and I don’t mean in monetary terms, neither do I get the impression that there is any serious attempt to address the lacuna.

    Our Lord Chancellor can stand in front of a load of ‘city’ lawyers and proclaim how we have an legal system that has “unrivalled reputation” for “impartiality, integrity and enforceability” (16th March 2013) which contributes £21bn to the UK economy every year (£4bn of which comes from abroad) and yet we cannot afford a system of justice (court based or otherwise) for our own citizens?

    Which is why I cannot help but think that the current agenda is about more than saving money… but soon i’ll be sounding like a pinko.

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