More work for less pay

Family barristers say that’s the only way they can safeguard vulnerable children

The only attention paid by the government to family legal aid fees over the past three decades has been has been to cut them, the barristers’ leader said this week. Barbara Mills KC, chair of the bar and herself a family lawyer, was introducing a new report on family legal aid called System Overload, published by the Bar Council.

Barbara Mills KC

Pay rates are now so low that some barristers feel they can no longer sustain a publicly funded practice, Mills added. “This disincentivises the profession from taking on legal aid work, meaning people are not getting the representation they desperately need.”

Based on findings by the National Audit Office, the Bar Council report says that fees for family legal aid work have eroded to approximately half their value in the 30 years since they were last revised.

It adds:

The impact on barristers has been profound. Long and antisocial working hours have become normalised, with many routinely working 70-hour weeks, including through the night.

The strain of fighting for justice for clients when the decision to properly represent them is to directly undermine one’s own ability to have a reasonable working life takes its toll. Many speak of exhaustion, burnout and a need to do less publicly funded work to make their working lives more tolerable.

Researchers from the Bar Council spoke to almost 100 members of the family bar. More than 80 are named in an annex but comments are not attributed to individuals.

The researchers found commitment and determination, as these responses demonstrate:

But they also found barristers ground down by the relentless pressure and frustrated that their wellbeing and personal lives were compromised to prop up an overburdened family justice system:

The 39-page report has three main findings:

1. Remuneration is now insufficient to support family barristers in maintaining a sustainable legal aid practice.

2. Working conditions and ways of working in the system are intolerable; and the fee schemes do not reflect the changing nature of work.

3. The financial and systemic pressures on family barristers are having a detrimental effect on their wellbeing.

The Bar Council, which represents nearly 18,000 barristers in England and Wales, argues that the work of family barristers in supporting some of the most vulnerable people in society through legal proceedings needs to be better recognised and appreciated.

It says:

As a short term fix, we are calling for an immediate increase in fees paid across the board. This would go some way towards ameliorating the erosion, by approximately 50% since 1996, of the value of fees paid for family work. We are also calling for immediate consideration to be given to funding the areas of work for which the schemes in their present state provide no remuneration.

In the medium term, the family fee schemes need wholesale review to make them fit for purpose. To avoid recurring problems, there should be a commitment to the establishment of an independent pay review body to ensure the regular review of the fee schemes.

We also recommend that public funding for legal representation is made available for all parties in all family proceedings in which domestic abuse is a factor.

The system in which family barristers work must be properly funded on a long-term and sustainable basis. This would require a fee scheme that recognises the complexity of the work that is undertaken, the tasks that barristers are required to undertake, and which increases in line with inflation. We would like to see reasonable working conditions embedded as part of the system design.

If the situation continues to deteriorate, it is only a matter of time before cases are compromised either through a shortage of suitably experienced counsel or because building pressures mean the system is too inadequately resourced to function.

Comment

The report quotes two well-known and profound comments from senior judges.

In 2013, the then president of the High Court family division Sir James Munby spoke about the importance of publicly funded family law work:

Orders of the kind which family judges are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make.

When a family judge makes an adoption order in relation to a 20-year-old mother’s baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 or even 70 years, and the baby for what may be upwards of 80 or even 90 years.

And Munby’s successor Sir Andrew McFarlane said in 2018 that pressures in the child care system, even then, were“remorseless and relentless”. He continued:

I am genuinely concerned about the long-term well-being of all those who are over-working at this high and unsustainable level. Some have predicted that, if the current situation continues, the family justice system will “collapse” or “fall over”.

But, as I have said before, I do not think systems collapse in these circumstances. Systems simply grind on; it is people who may collapse or fall over. Indeed, that is already happening and I could give you real examples of this happening now.

If that was what was happening then, just imagine what things are like now.

Advice to judges

In a separate development, family judges have been advised that certain areas of work are entirely unremunerated under the current family advocacy scheme. This includes drafting various documents and viewing some recorded evidence.

A letter from leaders of the Family Law Bar Association last month asks judges to keep the limitations of legal aid in mind when listing cases and making directions — “in particular when directing counsel to undertake work for which no remuneration is available”.

I understand that McFarlane agreed that the three-page letter should be sent to all family judges.