Does the government have a consistent family law policy? Is it driven by anything more than the Treasury's aim to keep down public spending? What are family lawyers to make of the conflicting announcements from government over the past weeks?One of the biggest surprises was the proposal in the Access to Justice Bill for conditional fees for family work.
Previously, any form of conditional fees for family work had been rejected as being wholly inappropriate.
The press campaign prior to the Family Law Act 1996 had criticised the adversarial process and demonised solicitors.
Court-based solutions were to be replaced by no-fault divorce, an emphasis on mediation, and on the parties being encouraged to reach their own agreements.
Conditional fees presuppose litigation, winners and losers, insurance and cash to pay the costs and the success fee.How can the government reconcile the ethos of the Family Law Act with conditional fees? It can't, but the Access to Justice Bill contains proposals for the withdrawal of legal aid from those areas of work where conditional fees are available, and introduces a new 'funding code' which sets out the criteria for deciding whether individual civil cases justify public funding.The threat of the withdrawal of legal aid from ancillary relief cases was one of the reasons why the Law Society led a vigorous campaign against family conditional fees, enlisting the support of peers in the Lords to move amendments during the committee stage of the Bill.
Last week, the Lord Chancellor bowed to pressure and agreed to withdraw plans for family conditional fees.
He conceded that they would undermine policy to resolve matrimonial disputes amicably and might encourage 'lawyer driven litigation'.Funding issues for family work are not going to go away.
The Legal Aid Board (LAB) has just published for consultation its proposals for the funding code.
Even the Board concedes that the 'prospects of a successful outcome' is a less precise concept in family proceedings, since many do not give rise to simple win or lose outcomes and the benefits cannot always be quantified in money terms.
The funding code proposes that in every case there should be an estimate of the prospects of success and a cost benefit analysis, before legal aid is made available.
Family lawyers are going to be compelled to take difficult decisions about the merits of individual cases.In future, we are going to need all the skills and sensitivity we currently possess, together with the ability to assess outcomes and make difficult commercial decisions.
We shall retain the respect and confidence of our clients and the public, so long as we always place our clients' interests first and do not allow financial pressures to influence our judgement.Last week saw the launch of the Family Law Panel.
Accreditation schemes have not been universally popular in the past, because of the fear of concentrating the work within the larger firms, and the adverse effect this may have on small firms and high street practices.
Family legally aided work will be redistributed during the next three years, not as a result of panel membership, but by the government and the Legal Aid Board.The introduction of exclusive contracting for family work in eleven months, will mean a reduction in the number of firms doing legally aided family work.
Only franchised firms will get a contract and at present only 2000 of the 9000 firms which receive legal aid payments have a franchise.
The government expects no more than 3000 firms to have a family law contract in the first stage, and after the first three years will seek to reduce the number of contracts to achieve economies of scale.Family practice is changing rapidly.
The Access to Justice Bill has just as many wide ranging implications as the Family Law Act 1996.
This is the right time to launch the panel which I hope will help the profession adapt to change, and help to improve the morale of family lawyers and their standing within the profession.
No comments yet