Laws of Love

When I was younger and started to go into family law, I still remember one of my best friends saying, “so, sleazy divorce lawyer it is ay?”. Now, I practice in all areas of family law, divorce as well as public and private law children, but just occasionally I do look at my career choice and wonder?!

The thing is that in this country, we thankfully haven’t quite gone the way of the US in having divorce lawyers as per the movies who are mini-celebrities in themselves.

As such my notice was attracted when I received “the lawyer” daily e-mail today as it described how Peter Andre has instructed a relative newcomer to the British divorce lawyer club to represent in him in his future publicity-fest. What was interesting was that the e-mail listed the ‘top’ british divorce lawyers, as follows:

Fiona Shackleton (of Payne Hicks Beach - and Shacka of Macca fame!)

Helen Ward (of Manches)

Mark Harper (of Withers)

Raymond Tooth (of Sears Tooth)

Maggie Rae & Liz Vernon (of Clintons)

Sandra Davis (of Mishcon de Reya)

and now … Stephen Foster (of Stewarts Law)

These names are indeed those lawyers dealing with the types of client that lend themselves to the ’sleazy divorce’ stories that one sees in the tabloids (and for the record I don’t think the above ‘good and great’ or indeed any divorce lawyers in the UK are ’sleazy lawyers’). However, the description of them as the ‘magic circle’ of divorce lawyers is one I would question.

Whilst the above are certainly superb lawyers, I would raise the other 99.9% of practitioners who deal with the small to medium cases which do not make the headlines. Actually, to my mind these lawyers are the true celebs as cases with ‘oodles’ of money are straightforward - trying to make non-existenet sums stretch is far more complicated (and emotionally challenging and heartbreaking), than deciding who gets the LA penthouse.

I always worry about writing posts condemning budget cuts in family law, but yesterday’s article in The Times, if true, tells of yet further concerning cutbacks. 

The alleged proposals are concerning for family lawyers (and family court clients) for three reasons however:

- Closing court centres and cutting court staff can only lead to poorer access to justice. The reality is that outside London and other major urbanisations, it is important to have a local court. Often family clients have extremely limited resources and serious childcare needs. The prospect of forcing parents etc. to travel 30 miles + just because their local court was closed will have serious implications (I’m ignoring the fact that owing to legal aid cuts clients in rural areas may have to go similar distances just to find a specialist lawyer!). 

- Equally further redundancies among court staff will only lead to a poorer service at court. Court Service employees are not paid large sums as it is and they are, for the most part, dedicated to their jobs. The system is, sadly, coping with far more work than it is truly fit for, and fewer staff can only lead to greater delays and a higher proportion of cock-ups.

- The article appears to state cuts will be made in “double representation” in public law (Care) cases. The very idea that there is double representation is a fallacy. A wheeze of CAFCASS legal has been for some time that if, in a care case, a Guardian is supporting the Local Authority they do not need separate representation. This is untrue. A Children’s Guardian may well support the plans of a Local Authority but they may well do so for different reasons and arrive at decisions from an entirely different perspective (that of the child), and it is lunacy to say that the court is not entitled to have that differing perspective enunciated by a dedicated representative to make sure the court takes on board what is said.

- The other avenue for “double representation” may be to prevent parents having different represenation if they run the same case. The difficulty is that there are truly very few care cases where parents do run the same argument. Any case in which domestic violence is a live issue (a huge proportion of care cases), is a case where separate representation is needed. Likewise cases involving sexual abuse or non-accidental injury require separate representation (invariably even if both parents admit such acts one will claim they were co-erced by the other). Equally in Care Cases the key decision is usually eventual placement of the child and parents (assuming they are separated), almost always have different strengths and weaknesses and  these need to be put forward vigorously. 

Ultimately in relation to family law (and particuarly care), it is understandable that the government will feel pressured to cut costs; however it must be realised in Whitehall that family law delivery ‘on the cheap’ will lead to huge injustice (and in Care cases it is strongly arguable wrongful permanent removal of a child is far more serious than a period of wrongful imprisonment). Further, when so many social problems are said to be due to children being given poor / unfortunate parenting, a small cut in the Ministry of Justices budget may well require huge increases in other areas of government activity, not to mention a further loss of social cohesion.

When will it be realised that court staff and family lawyers are, on the whole, dedicated and hard-working professionals desperately trying to ensure the system remains fit for purpose.   

I hesitate to write this post as I obviously have a certain degree of self-interest! That said, I do feel that public perceptions and reality on this topic are somewhat far apart and the whole point of blogging is of course to express views - so here goes!

 I’m prompted by an article by Frances Gibb in The Times today regarding what will, in all likelihood, be the latest development in the ongoing war surrounding fees for family work. Family Law Week have already commented on this and Jacqui Gilliatt makes some interesting points but there are many others.

 As was recently pointed out in Pink Tape, life at the family bar is not always as portrayed in the press and has certain pressures. I commented on the post by Pink Tape that Family Barristers are not poor and that is certainly true, however nor are we millionaires (or at least I’m not - am I doing something wrong?!).

The Times article quotes Legal Services Commission stats that the average annual earnings by members of the Family Bar from legal aid are c.£140,000. The first point to make is that I am a regional barrister on the South Coast and relatively junior, but those ’average’ fees certainly do not reflect earnings of my close local collegaues!

Secondly, the public should remember that the fees cited are ‘gross’. Even if those fees were received then a proportion would get paid to Chambers (this varies but anywhere from 10-20% is common). There are then business expenses (a lexis nexis online subscription alone is £1,000+ per year), and that’s before NI and tax are paid.

As I say, the legally-aided family Bar are not poorly paid, but nor are the attitudes of the press a fair reflection of what we do. No real data exists but certainly for my part it is rare that in fact if I divide my gross fee by the hours worked then my hourly rate is much above £60. This represents a greater wage than much of the population can hope to earn in a day but one must look at comparisons with other professions and even branches of law.  

Partners in law firms in this country charge in all areas of law well in excess of £100 per hour (£160 is probably the average) and the reality is that in most areas of law other than crime, the bar and solicitors would expect to bill at least £100 per hour. I don’t argue for huge increases in family fees, I am realistic, that will simply not happen. But the government must understand the effects of its drive to bring down family fees yet further.

I know colleages who now actively market themselves in employment, contract or big-money divorce finance, simply to avoid legal-aid rates. These collegaues were good family lawyers who cared for their clients, but the simple fact is their first priority must be their own families and monthly mortgage payments. The government is driving good lawyers from publicly funded family law (as well as discouarging new entrants - why would you choose an area where you earn less and must cope with huge emotional pressures?!). Can it be right that lawyers who represent parents at risk of losing their children forever (as in most care cases) earn less that those arguing over the fairness of the loss of a job? The government appears to think so but my morals strongly disagree and ultimately their policies will lead to a reduction in the quality of legal advice in legally-aided family cases.

Is it true that better expertise are required in privately funded cases? I would have to say no. I carry out both private and publicly-funded work (as does most of the bar), but whilst all clients receive my full attention it is often in fact the case that stretching money that simply doesn’t exist (as in most legally-aided cases), is far harder than divvying up a pot where both parties will at least be able to purchase a property at the end of the process. 

Having said all of the above, I should however add a note of caution. Part of the stated thinking behind the current drop in fees for the family bar is to bring about an equality in terms of payment with solicitor advocates. I am firmly in agreement that those doing the same job should earn the same wage and I hope solicitors will not read any of the above as justifying privileges for the Bar.

It must be realised that government policy is currently to reduce payment for both branches of the profession and both sides are fighting as best they can for survival. In terms of legal aid family solicitors there are now parts of the country where finding a solicitor is nigh on impossible and the attack on solicitors is just as reprehensible as that on the Bar. I just hope that one day a government (of whichever colour), will begin to value the work family solicitors and barristers do in creating and supporting the ’society’ that politicians so love to bemoan as being in a state of decay. 

I see from the BBC website that Mr Justice Coleridge has weighed in to the debate on the changing nature of family life in the UK and the growing legal-aid crisis. The Western Circuit Family Division liaison judge was speaking at Resolutions’ annual conference in Brighton and appears to have given a headline-grabbing speech.

 Thanks to the BBC article and a Resolution News Briefing it is clear that this well-respected figure was not mincing his words.

Practitioners will be pleased to see Sir Pauls’ support for their current plight with him noting that, “the family justice system in this country has been and is being mismanaged and neglected by government”. Equally the Judge is reported as having urged policymakers to, “Stop chipping away at the family justice system and trying to have it on the cheap”.

Coleridge J also drew an ineresting comparison: “There has never been a greater need for the public to have access to a lawyer with speacialist family law and family justice experience than now. They are as vital a commodity in our national life as the local GP. Indeed their tasks are not dissimilar. When a family is going through crisis whether it be medical or psychological or legal, caused by family collapse, the first port of call is and should be the local GP if it is medical, and the local family lawyer, solicitor and barrister, if it is legal.”

Mr Justice Coleridges’ comments will be welcomed by practitioners who are rapidly being forced out of publicly funded family law owing to the growing cuts and an increasingly unprofitable sysyem which, though family lawyers may be committed to, other partners in mixed firms are not prepared to stomach.

The Judge also somewhat self-interestedly referred to the problems faced by the courts due to under-resourcing and the delays flowing from this. This will certainly be familiar to practitioners. Last week I tried to list a 5 day final care hearing and the earliest firm fixture was at the tail end of November - the system simply can not keep up, despite dedicated and expert judges and listing officers, and this is undoubtedly to the detriment of those resorting to the courts in their time of need.

The papers will probably however, attach rather less importance to these comments on the system, than on those made by Sir Paul alikening the threat from the growing number of family breakdowns to the dangers of climate change. The Judge urged the government to address the issue head-on and do something about it, mkaing it plain in the process that the current conservative plans are no answer either, “I am not talking about tinkering with tax rates for married couples. That is irrelevant and ineffectual window dressing”. The Judge also appears to ahve gone out of his way not to criticise single-parent families though we shall have to wait and see how his observations are portrayed in the press.

Finally the Judge urged a re-appraisal of of much current law including that relating to cohabitants, divorce and ancillary relief, noting that the social mores of the country today are totally different to those applicable when the applicable laws in those areas were last addressed.

Will the government act on any of the issues raised in this interesting speech? With the economy going south and the politcal race hotting up, family law - which is far more controversial than criminal law - is unlikely to be at the centre of any manifestos. Still, at least Sir Paul’s comments will add a welcome spotlight on the current mess - assuming that is, that the media give a fair representation of the Judge’s words.