Row grows over quality of advocacy in public law children cases

The Law Society has defended the quality of family advocacy provided by solicitor advocates in public law children cases, after the chairs of the Bar Council and the Family Law Bar Association wrote to the Government expressing concerns.

The Bar Council and FLBA letter, sent to Justice Minister Shailesh Vara last week, said: “The concern is that the standard of advocacy services being provided in many publicly funded family cases is not in accordance with the requirements of Legal Aid Authority contracts and the manner in which advocacy services are being provided is contrary to the regulatory objectives in the Legal Services Act 2007.”

The letter claimed that this concern was shared by members of the FLBA, including those who sat as recorders, and a number of solicitor advocates.

The FLBA and the Bar Council argued that the position in the Family Court was “undoubtedly worse” than in the Criminal Court, where the Jeffrey review commissioned by the Ministry of Justice reported in 2014 a marked increase in the number of solicitors conducting advocacy and a disparity in mandatory training requirements between barristers and solicitor advocates.

In relation to the Family Court the letter said: “Solicitors require no advocacy training in order to appear either in the County Court, where the vast majority of children cases are conducted at circuit judge level or below, or in the High Court. It is undeniable that the training undertaken by solicitors is limited compared to the extensive training undertaken by the Bar.”

It said that – until recent funding cuts – this had only had an occasional impact on the conduct of proceedings, “as solicitors conventionally instructed counsel on all matters of complexity”.

The FLBA and Bar Council claimed that since the 10% cut in representation fees was imposed in 2012, followed by the significant reduction in legally aided work brought about by the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), more and more solicitors had found it difficult to make a living from publicly funded work.

“This has led to the current position, where many more solicitors than previously had been the case are conducting hearings themselves, or using other members of their firms, so that the FAS [Family Advocacy Scheme] payment can be claimed,” the letter said.

The FLBA and Bar Council said it was manifestly in the public interest that those in need of family legal advocacy services were entitled to the best available advocate, but suggested that “in far too many family cases, this [was] simply not happening”.

The letter added that many clients were not being given the informed choice about their options that solicitors’ professional code requires them to be offered.

The FLBA and Bar Council further claimed that “serious damage” to the public interest was being caused by this situation. “The standard of representation being provided in many cases is so poor that unjust outcomes have occurred,” it insisted.

The letter said that:

• In some cases solicitors who previously would not have contemplated conducting advocacy at a contested hearing were now making appearances at such hearings “even though they do not have the skills to do so”;
• Recently qualified and employed solicitors were being required by their firms to conduct hearings “even though they do not have the necessary skill or experience to carry out advocacy services effectively or efficiently”;
• Evidence from their membership suggested that questions that were necessary for the proper conduct of the client’s case were not being put, “either adequately or at all”;
• Points of law, which ought to have been raised on behalf of clients so that their cases were properly presented, were not being raised. Failing fully to apprise judges of the law created a risk of injustice and the need for an appeal. “This is highly damaging, not only to those affected by the outcome of the case, namely the parties and their children but also to the standing of the courts in the eyes of the public, and, of course, to the public purse”;
• The problems prolonged proceedings when the overriding objective was that cases should be heard as quickly and expediently as possible. “Whilst other advocates and judges do their best to make good the deficits, they cannot, and do not, protect all parties from the results of poor advocacy.”

The FLBA and Bar Council meanwhile criticised the practice among a “significant number” of those solicitors who continued to instruct counsel for contested hearings of retaining cases for all earlier hearings and advocates’ meetings before instructing counsel “at the eleventh hour”.

This meant that there was inadequate analysis of the evidence and thereby inadequate preparation, they claimed. “Applications for an adjournment are unlikely to be granted, particularly after April 2014, and injustice results. Where applications for adjournments are granted, delay and additional expense result.”

The letter, signed by Alistair MacDonald QC of the Bar Council and Susan Jacklin QC of the FLBA, called for a review similar to that conducted by Sir Bill Jeffrey in the criminal courts.

Responding to the letter, new Law Society President Jonathan Smithers said: “From our discussions with the FLBA it is clear that the Bar’s main concern is in fact the impact of LASPO on advocacy work, and whether the available work will be taken up by solicitors rather than barristers.

“It is regrettable that this vested interest in its members’ market share has led to the family Bar denigrating solicitor colleagues under the guise of a concern for quality.”

Smithers pointed out that solicitors gained their experience under supervision and many were accredited with Law Society and Resolution schemes. Solicitors acting for the child were invariably members of the Law Society’s Children Panel, he added.

“They have been subject to a rigorous application procedure, including interview and the requirement to demonstrate advocacy skills, and are required to undergo periodic re-accreditation,” he argued.

The President insisted that solicitors were conscientious when deciding which advocate was appropriate in the client’s best interests. “They have strict duties to act only in areas where they are competent.”

He added that the FLBA and its members were aware that there were proper channels in place if they wished to make a complaint about a solicitor.

“Clients often prefer solicitor advocates to barristers because they can rely on the solicitor who conducts their case from the outset to represent them in court, rather than risk a barrister having a clash of case and being unable to represent the client at the last minute, as sometimes happens,” Smithers also claimed.

“Clients value the consistency of having a legal professional who knows their case intimately and remains by their side in court. The solicitor may well have more experience than a last minute replacement sent by chambers.”

The Law Society President argued that both sides of the profession needed to work together to maintain high standards and not allow the financial pressures created by LASPO to compromise client care and standard of delivery. “Family solicitors provide high quality advocacy for thousands of families, and will continue to do so.”

He told Vara that if following consultation with the senior family judiciary he were to conclude that there was a sound evidential basis for commissioning an independent review, the Law Society would co-operate with it and would hope to be consulted on the parameters of such a review.