I hope that you all received your first electronic only version of Family Affairs, and that you have had the opportunity to read my Chairman’s Column. Had you done so, you might have appreciated that that piece was actually written in Mid-March – about a month ago. So much has happened since then, however, that I think it important to let you all now have this update in relation to just what is now afoot, and how we are seeking to deal with matters on all of your behalves.
I should add that we welcome any input, from any of you, in relation to the matters and issues which are referred to below – if you want things done, points taken or issues vented, then you must talk to us. With a new President, with a new broom in his hand, at the helm of Family Justice, and the Government now consulting about yet another round of Legal Aid cuts we all have our work cut out to get the Family Bar’s position across in a way that most effectively enables it to be heard. There is an enormous strain at the moment on the committee, and especially the officers and the chairs of the children, money and fees sub-committees, as wholesale changes in systems and structures are accompanied by wholesale cost-cutting from the government.
We are continuing to engage with the judiciary as it remoulds the family justice system in advance of the impending introduction of the single Family Court by statute, expected in Spring 2014. We are of course responding on the Family Bar’s behalf to the latest consultation on further reducing Legal Aid provision in the Public Law arena. We are also responding to an initiative from the President about transparency in Family Proceedings, about which, whilst we on the committee have certain views, we are also anxious to hear more from you, the members.
At our last full committee meeting, just before Easter, and since, the following matters have raised the most animated discussion.
- New Draft Practice Direction 36c [NB the Public Law documents referred to in this FLBMail can be found here]
At a meeting in the Law Society’s offices which I attended with Malek Wan Daud on 21st March 2013, the President and Ryder J (as he then still was) introduced the new Practice Direction 36c for the conduct of Public Law cases, which is being brought in early – probably by July 2013. The aim is to accelerate the process to enable cases to be disposed of within 26 weeks by expecting matters now dealt with at the CMC to be dealt with at a ‘First Case Management Hearing’ – the first time that the matter comes before the court. The Practice Direction is not yet in its final form, and so not available yet for general dissemination.
It was anticipated that the documents would be finalised by mid-April so as to be used in judicial training for all public law ticketed Family Judges, which is being rolled out in late April and early May 2013.
A National Tour by the judicially trained members of the committee is scheduled to begin in the week commencing 9th September 2013, by which time the documents will have been in use for 2 months – over the summer. What we hope to do is visit centres such as Leeds, Manchester, Birmingham, Cardiff and Exeter, passing on how the judges are being encouraged to apply the new rules, and hopefully, how the Bar can make best use of the new scheme in the interests of their clients. We will then hold a separate seminar in London. Separate plans are being made for presentations in other places (eg. Liverpool and Nottingham – which is hosting our next national conference in November).
This was a timescale which the President considered optimum, so that any teething problems in the operation of the new scheme could be identified and resolved. The committee will be liaising (we hope soon) with the regions over appropriate facilities for the tour. We are also aware that Resolution have expressed an interest in advertising the seminars to its members – and cooperation here could save considerable cost. But we are in your hands as what you think best, locally.
Practice Direction 36c will be piloting from June/July 2013.
2. Fees & Funding
Attached to this FLBMail is the report of the Fees sub-committee prepared by Jo Delahunty QC and Lucy Reed after their last meeting, just prior to the full committee meeting on 29th March 2013. You can imagine that its’ contents were the subject of lengthy and concerned debate. Since then, we have received notice of the Government’s latest consultation which is discussed below.
Lest it be thought by any amongst you that the national committee really hasn’t much to do for you at the moment, let me take a moment to stress just how hard my fellow officers (Susan Jacklin QC, Philip Marshall QC and James Roberts) and I, the Fees Team (chaired by Jo), the Children Team (chaired by Janet Bazley QC) and the Money & Property Team (chaired by Leslie Samuels QC) have been working to deal with the raft of new consultations, proposals, changes and cuts which are being thrown up at the moment. And whilst there was not during last year sufficient progress in the timing of change to justify the sending out of FLBMails as regularly as has sometimes happened in the past, this year has certainly begun with changes and fresh consultations happening at such a rate that we anticipate both informing you and seeking your views with what may become depressing regularity.
It may be that we are all ultimately only able to do a limited amount to prevent unwelcome changes being imposed upon us by a government that is determined, for political reasons, to be seen to be imposing savage cuts in all areas. It may be that some of you are disillusioned by the FLBA’s inability to offer protection from the proposed changes, but you should not think that not enough was being done, by us, on your behalf.
Going forward, to address these mounting demands, we propose:
- To send more regular (perhaps 6 weekly) Email bulletins
- Try to make information available (once we have it) via twitter and other social media
- Continue to drive up our membership to close to it levels of last year – so that we are properly mandated by the whole of the Family Law Bar
- Invite representations and comment, in communications such as this, from the membership
- Provide more detail about the specific work of the subcommittees in Family Affairs (from the summer edition onwards)
- Begin the publishing of minutes from the National Committee on the FLBA website
In addition, we will also be inviting our regional representatives to become more engaged, not only with the national committee, but also with the membership in the regions. We do not want to be seen as a national committee that is London-centric. We are currently looking to hold the 11th September meeting outside of London, and potentially as an open meeting, subject to arranging a suitable venue. More details on that to follow.
A newsletter should be circulated to the membership on a regular basis, summarising the main issues with links to the webpage for more in depth information.
4. Standards Regulation & Practice
i) Quality Assurance – In terms of a QASA scheme for the Family Bar there is still some time before a Family Law scheme will be brought forward by the BSB. The Criminal Scheme will need to be up and running before a Family Scheme could be even discussed – let alone introduced – but it is certainly on the agenda. The FLBA has already made it very clear that it would oppose any such scheme in principle, but at the same time (trying to learn the lessons from the CBA which did not offer a practical alternative) we are in the process, in a sub-committee chaired by Susan Jacklin QC the vice-chair, of working on a QA scheme for family law which might just work – rather than something much worse which might be otherwise imposed on us.
ii) Guidance on dealing with litigants in person – the completion of the Bar Council project has seen the booklet go out to much favourable press comment, with contributions for the FLBA from Geoffrey Kingscote and Louise Brown.
iii) Contract Terms. These have caused a significant headache ever since the Law Society issued a Practice Note in late January 2013, in response to the Bar Council’s standard terms which had been promulgated since the summer of 2012, and were to come into force on 31st January 2013. I have been liaising with Resolution about this, and am due to meet with their representative in the next few days to see if some guidance for Family Law professionals can be hammered out before too many major issues arise. Plainly the current position is deeply unsatisfactory – and the sooner there exist some guidelines for Practitioners on both sides, the better.
I am acutely aware that this problem is one that, if anything, is more likely to hit practitioners who do not have established relationships with the firms who send them instructions, and they who therefore need the most protection by way of any guidance that the FLBA and Resolution can produce.
In advance of any concluded negotiations, therefore, I should be delighted to receive any views, concerns or suggestions for practical ways forward, which might enable some measure of agreement to be achieved with Resolution. The view I take is that, as a referral profession (at least for the moment), it should be we who set out the terms on which we do business, and the solicitors who chose, on that basis, whether they wish to contract with us. At present, many firms seem to be offering to instruct only on the basis of specific terms drawn up by their own commercial departments – but we cannot operate with as many business terms as we have instructing solicitors.
Resolution does appear to be as concerned about the situation as we are, and as such would like to send out guidance to its own members. Clearly, you will all be kept informed of any progress.
iv) McKenzie Friends – For information, there is presently a working party involving the Access to the Bar Committee of the Bar Council, the Young Barristers Committee and the FLBA to see whether something can be done to promote affordable direct access to barristers in place of the public having recourse to more and more paid but unqualified ‘McKenzie Friend’ representatives.
5. Money & Property
i) The PRFD Pro bono unit. A meeting was held on 9th April 2013 with HH Judge Altman to consider the options for a broader based the Pro bono unit at the PRFD, after the ending of the QEB scheme, which failed to attract a sufficient number of judicial referrals. At the meeting, (attended by me, the Treasurer and the Secretary) it was agreed that there are problems with any broader pro bono scheme, especially if is one without a proper filter to ensure that financial criteria are met. However, given the likely increase in people needing such representation going forward, thought is being given to an expansion, via the CAB, into separate assessed pro bono allocation of suitable cases, for those who might previously have been eligible for legal aid.
ii) The committee has been asked by Parker J to produce a standardised draft order for freezing injunctions with explanatory notes and this is presently in hand. There is also the current consultation on the draft Inheritance and Trustees’ Powers Bill to which Leslie Samuels QC is co-ordinating our response .
6. Children – Transparency
Also attached is the minute of the Children sub-committee which deals with the various meetings that Janet Bazley and I have attended to deal with the coordinated response to the Children and Families Bill. As that Bill passes through Parliament we will continue to make our voice heard. She also deals with the President’s new initiative on Transparency, which we all on the committee feel is something that the membership should be asked to express a view about before it progresses any further.
As Janet reports, the President has made very clear his position on the promotion of transparency in the Family Court. He wants the FLBA to assist in producing a paper which indicates which classes of documents we feel ought and ought not to be made available to the press during the progress of substantive hearings, at the moment principally in Public Law proceedings.
Leslie Samuels QC has produced a response following on from our meeting with the President which will be distributed shortly. Please take time to read it. We are clear that there are very mixed views about this issue amongst the membership and further consultation of you is probably required before anything more can go out in the FLBA’s name. As we have made clear much more work, and discussion, is required before we can produce a concluded view.
I should also make clear that whilst Public Law Children Proceedings are the President’s current focus, he does intend that any new rules should also be extended to private law and financial proceedings as well.
On 9th April, you may all now be aware that the Government’s ‘Transforming legal Aid’ consultation was issued, inviting responses by early June. The whole consultation is attached to this e-mail as a PDF, but particular attention should be paid to Chapters 6 and 7.
There is a commitment in the document to work towards competitive tendering for family work, but also proposed are a 10% cut for all solicitor family fees as a direct result of the implementing of Ryder LJ’s modernisation programme, and a 20% cut in experts’ fees in Family cases. The justification for the 10% cut for solicitors is breath-taking – there is a real sense that the profession’s (required) co-operation with the modernisation programme has been akin to our constructing our own coffins. The more we achieve, it appears, the more justification there will be to cut fees as cases will now be said to be quicker and simpler. Rest assured that our response will be full, and detailed. But the more feedback we have from you, the more we can be sure that we are putting the arguments that you want us to put. And some of you may want to respond directly, yourselves.
So, as I trust you can all see, there is plenty being done, but plenty too that needs doing as we go forward to ensure that this profession to which we are all committed is allowed to continue to do the job that it does well, and be remunerated fairly at the end of it.
Finally, we have just received notice, for those of you in the South East, of an open meeting with the President to be held in London next Monday 22nd April – precise venue to be confirmed. The letter of notice is also attached. Notwithstanding the short notice, we would be delighted to see as many as possible of you there.
Nicholas Cusworth QC