Divided we fall

It is unlikely to have escaped the attention of anyone in family practice that on 16 July 2015 the Family Law Bar Association and the Bar Council wrote to the Ministry of Justice on the subject of ‘the standard of advocacy services being provided in many publicly funded family cases’.

In prefacing what I write, I want to make clear that I do not pretend to speak the opinion of others. A sore point for me, and for many to whom I have spoken at the bar, is that nobody asked me what I thought before this letter was written.

No proper opinion- or evidence-gathering exercise has taken place. I am a member of the FLBA, but I am not one of the members of the FLBA to whom the letter refers. I speak for myself alone, and not for chambers or any wider whole.

This is a profoundly difficult time to be involved in family law. I use the term ‘family law’ in its widest sense, because, of course, the ridiculous cuts that have been made in recent years to legal aid have such a wide-ranging impact. It is not just those professionals in receipt of legal aid fees (or not, as the case may now be), but also most importantly, members of the public and their families who are so greatly affected.

It is right that a stand is taken against the government’s uncaring and short-sighted policy of cutting spending, and it is right that those whose voice can be heard do indeed speak out.

As I am sure is the case for many, a central reason for me being in this job is to give a voice to those who need to be heard.

However, it seems plain that the way in which the Bar Council and the FLBA have chosen to speak out is misdirected and divisive. Their complaint is that the cuts in fees mean unwilling or incapable solicitors are having to go to court rather than instruct counsel, and this leads to cases being poorly presented. Of all the various ills that befall family law at present, this is a peculiar one to choose. How pervasive is this problem, even? Does it actually exist? The BC/FLBA letter itself cites no direct evidence to support their assertions.

Resolution, in its letter of response, asserted it ‘had not seen any evidence’ to support the concerns raised. I, too, have no such evidence in my experience.

With evidence available of a wider significance, could the Bar Council and FLBA not have pointed their pen in a more relevant and useful direction? There is evidence such as that cited in the 1 May 2015 open letter from Sir Anthony Hooper, Sir Stephen Sedley, Baroness Helena Kennedy QC, and many others, that suggests investment in legal aid in fact generates a huge saving to the state on other services.

There is evidence such as the Legal Aid Agency’s chief executive’s 2015 pay rise of over 10%. There is also, of course, the evidence that readers no doubt see every week, from case to case, of the alarming impact of legal aid cuts.

Never mind the presence of solicitor-advocates (whose capability I have no need to defend), how about the absence of any lawyers at all?

I recently represented a mother at a fact-finding hearing in a private law dispute where the father, defending himself against allegations of sexual and physical abuse of his children and their mother, did not qualify for legal aid. He was representing himself, did not speak English as a first language, and did not realise that he was supposed to have prepared questions to ask or even that he needed to bring the court bundle with him.

Perhaps this is the sort of issue we should be writing to the MoJ about.

The ‘we’ in that last sentence is important. I am aware there was an ongoing discussion between Resolution, the Law Society, the Association of Lawyers for Children, and others, around some of the issues raised (or at least matters related to the issues raised) in the BC/FLBA letter. There was also an indication from the BC/FLBA that Resolution would be invited to co-sign the letter that was sent, and a deadline of 20 July was set out. This reflects the sort of cooperation and collaboration needed from the legal profession as a whole in the face of the challenges at hand.

Yet, in fact, the BC/FLBA sent their letter on 16 July, without first having sent it to Resolution or the Law Society, and made it public on Twitter on 19 July. Given the content of the letter, it doesn’t take much imagination to figure out why the consultation process was ignored.

Crucially, though, this sort of divided and inconsistent approach will do little to further our common cause. ‘We’, meaning the bar, solicitors, and legal professionals more widely, need to work together to fight for those who need help and to fight for the system of justice the government seems so intent upon destroying.

Matthew Richardson is a barrister specialising in family law at Coram Chambers, London