John Bolch
In his latest post, family law blogger John Bolch examines whether a strike could be a distinct possibility if the supply of goodwill runs out as legal colleagues continue to face extreme pressures with cases and courts.
As the reader will no doubt be aware, criminal lawyers have been taking strike action across the country, seeking an increase in the rate of pay that they receive from the government for their work.
The lawyers say that their legal aid pay rates have been cut for many years, and they are calling for a 25% increase to make up for those cuts. If this does not happen, they say, the criminal justice system will grind to a halt, with many lawyers leaving, and newly-qualified lawyers being discouraged from doing criminal work.
Anyone charged with a criminal offence may simply not be able to find a lawyer to represent them. Could a similar scenario happen in relation to family legal aid work?
A little background
Before we consider that question, we need to look at the basics of how legal aid works.
It is important to understand that legal aid lawyers do not decide how much they charge. The rates of pay are decided for them by the government, which provides the funding from which legal aid lawyers are paid.
It could be said to be a somewhat unfair arrangement, whereby the purchaser of a service decides how much they should pay – I’m sure many consumers would be only too happy to decide how much they should pay for, say, a plumber!
The detail of how legal aid lawyers are paid is too complex to go into here, but basically rates of pay are set for doing certain pieces of work, such as attending a hearing.
The other thing to understand about family legal aid work is that it is essentially only available for two types of work: child care cases, where the local authority apply for a care order in relation to a child (known as ‘public law’ work), and cases involving allegations of domestic abuse.
Other types of family cases, in particular cases relating to finances on divorce and disputes between parents over arrangements for their children, have not been covered by legal aid since the government made huge cuts to family legal aid back in 2013.
Child care and domestic abuse
So when we talk about family legal aid work we are essentially just talking about public law cases and cases involving domestic abuse, public law comprising the vast majority of the work.
But these are of course very important matters, in which legal representation is surely essential (as the government recognised by keeping them within the legal aid scheme back in 2013).
Public law cases, in which parents face the possibility of their children being taken away from them by the state, have often been described as one of the most serious types of legal procedure anyone could face. Doing so without legal representation is surely unthinkable.
And obviously victims of domestic abuse need the protection of the law, and thus surely also deserve the right to representation that legal aid gives them.
So clearly the possibility of family legal aid lawyers following their criminal brethren into industrial action is something that would have extremely serious consequences.
Similarities
Perhaps the best way to look at the possibility is to consider the similarities between criminal and family legal aid work.
The first and most worrying similarity is that, just like criminal legal aid, rates of pay for family work have been stagnant for many years.
This has of course had the result that those rates of pay have generally fallen well behind the fees that are typically charged for doing the same work on a private basis. For example, the fee payable for dealing with the final hearing of a domestic abuse injunction application is just £361.17.
To put this into perspective the Family Law Bar Association (‘FLBA’), which represents family barristers, estimates that the same work done privately would pay between £750 and £1,000 outside London, and £1,250 to £1,500 in London.
As to public law work, a direct comparison is not possible as it is all legally aided. However, the FLBA state that the fee for a five-day public law hearing would be £3,719.90, whereas a five-day hearing of a children dispute between parents would attract a private fee of £4,000 to £5,000 outside London and £7,000 to £7,500 in London.
Whilst these disparities may not be quite as bad as for criminal work, they are clearly of concern, and are not going to do much to encourage family lawyers to continue to do legal aid work, or to entice new lawyers into legally aided family work.
And it’s not just about pay…
Family work has also suffered from budgetary cutbacks and court closures over recent years, in a similar same way to criminal work. Many are the complaints from family lawyers of dilapidated court buildings and high court caseload backlogs, with resultant delays in getting hearings.
So yes, there must be serious concerns that family legal aid lawyers could at some point in the foreseeable future consider industrial action of some sort.
As always, the system relies upon the good will of those doing the work. For criminal lawyers the good will has run out. But there is a big difference of course with the nature of the work.
Whilst criminal lawyers do of course act for juveniles accused of crime, the bulk of their work is representing adults. The public law work of family lawyers, on the other hand, directly impacts upon the welfare of children of all ages. Could this mean that the good will of family lawyers will stretch further than that of criminal lawyers?
The government may be hoping that it does.