Family barristers have attacked plans for the payment of fixed advocacy fees in legal aid cases from 2010. The Family Law Bar Association (FLBA), which represents 2,300 barristers, alleges that the proposals take a ‘breathtaking risk with the most vulnerable in society, namely families and children at risk of serious physical, emotional and sexual abuse’. The association outlines its opposition to the scheme in a 73-page submission to the government. It says there should be no further cuts in family legal aid from the present budget, and that the proposed Family Advocacy Scheme – a flat, fixed scheme which pays the same fee irrespective of the amount of work undertaken – should be redesigned to reflect the complexity of the case. ‘The proposed scheme represents a mismanagement of valuable public funds by over-rewarding the less complex cases at the expense of the more complex cases,’ it alleges.

If the scheme is implemented in its current form, the FLBA says families and children will go without proper legal advice and representation, putting some at increased risk of harm. The number of unrepresented parties will go up further, increasing the length and cost of cases, and the risk of miscarriages of justice will increase, it adds.

The FLBA also warns that the Legal Services Commission’s consultation on the scheme is ‘fundamentally flawed’, since it is based on unreliable data. ‘The wide-ranging research on the family advocacy market which the LSC commissioned from Ernst & Young shortly before the consultation period ended makes a mockery of the idea of consultation,’ it adds.

Lucy Theis QC, FLBA chairman, said: ‘The proposed Family Advocacy Scheme over-rewards less complex work at the expense of the more complex work and, as a consequence, fails to match the fee to the work done.

‘This will result in a significant mismanagement of public funds and will drive experienced practitioners away from this work, in particular the more complex cases. This will put the most vulnerable families and children at increased risk at a time when there is heightened public concern regarding child protection.’

Bar Council chairman Desmond Browne QC said: ‘Consulting on a scheme based on flawed data is a recipe for disaster. Ministers should stop and think about the impact of their plans on the most vulnerable in society.

‘Against a background of repeated cuts in funding for this vital area of work, the commitment of family barristers is remarkable. They are operating at the frontline in public services, with children and families at real risk of harm. Their commitment cannot be taken for granted; otherwise more barristers will leave this area of practice.

‘A bodged cost-cutting exercise, with no regard to the interests of justice, will not be forgiven by the public who want to see real progress in protecting children after the tragedy of Baby P.’

Explaining the FLBA’s proposals for reforming legal aid in the public interest, Theis added: ‘The FLBA has always accepted the need for costs for the provision of legal aid services to be controlled. We support the aim of ensuring that the legal aid spent on those areas, which provide specialist legal advice, goes to priority clients. This must not be at the expense of effective access to justice. That is why we have set out the principles that should underpin any revised scheme. Once the data issues are resolved, we want to work in a constructive way with the LSC and others to devise a fair and proportionate graduated advocacy scheme that properly rewards the work done. The FLBA welcomes the recent recognition by the LSC that their proposed scheme is "too simple".’

The FLBA today repeated its warning that the government’s proposals would hit black and minority ethnic women barristers hardest, as this group showed the greatest commitment to family legal aid work. This would reduce the diversity of barristers undertaking this work and, in turn, frustrate the government’s objective of increasing the diversity of the pool from which the judiciary of the future will be selected.

The association added: ‘Implementation of these changes could result in the government breaching its duty under section 25(3) of the Access to Justice Act 1999 to provide a sufficient number of competent persons able to provide advocacy services to the required standard.’