The bar has called for an independent review of advocacy in family law, over 'a growing concern' that an increase in the number of solicitors in conduct hearings has led to a decline in standards and ‘unjust’ outcomes.
In a letter to Shailesh Vara, justice minister, the Family Law Bar Association and Bar Council say the risk of injustice is now so great that a review is ‘absolutely necessary’ in the public interest. The Law Society accused the letter's authors of being motivated by self interest.
The bar's letter notes that cuts in legal aid fees and the reduction in legally aided work have led to more solicitors representing their clients in court.
‘In some cases solicitors who previously would not have contemplated conducting advocacy at a contested hearing are now making appearances at such hearings even though they do not have the skills to do so,' the letter says.
‘The standard of representation being provided in many cases is so poor that unjust outcomes have occurred.’
The letter says that in ‘far too many’ family cases those in need of family advocacy services are not getting the best available advocates and are not getting an informed choice.
Noting the 2014 review of criminal advocacy by Sir Bill Jeffrey, which said that barristers are ‘manifestly better trained’ as advocates than solicitors and expressed concerns of standards of criminal advocacy, the bar warns that the position in the family court is ‘undoubtedly worse’ than in the criminal courts.
‘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,’ the letter states. ‘It is undeniable that the training undertaken by solicitors is limited compared to the extensive training undertaken by the bar.’
It says that evidence from members of the family bar show that questions necessary to the proper conduct of a client’s case are not being adequately put, and points of law, which ought to be raised so clients are properly represented, are not being raised. ‘This failure is of particular significant since, in addition to the risk of injustice, it creates a serious risk of the need for an appeal,' the letter says.
‘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 bar also criticises solicitors for retaining cases for all earlier hearings before instructing counsel at the ‘11th hour’. 'A common complaint from counsel instructed in this manner is that there has been inadequate analysis of the evidence and thereby inadequate preparation.’
The letter, signed by Alistair MacDonald QC, the chair of the Bar Council, and Susan Jacklin QC (pictured), chair of the FLBA, proposes that the Ministry of Justice commission a review of advocacy in publicly funded family cases along the lines of the Jeffrey review.
Law Society president Jonathan Smithers said he was ‘disappointed’ at the bar's stance and has written to justice minister Shailesh Vara in response to the letter.
He said: ‘We are at a loss to understand why the bar is accusing family solicitor advocates of providing a poor level of service. We can only assume that this reflects the Bar Council and FLBA’s self-interest to increase barristers' market share, as a result of falling levels of work following civil legal aid changes.
‘The reality is that those in need of advice often prefer solicitor advocates to barristers. Solicitor advocates provide consistency and can be relied on to know their client's case inside out from the start through to representation in court.
‘It means the client is not left in the lurch at the last minute when a barrister has a clashing case and sends a replacement with no previous knowledge of the case.’
Family law organisation Resolution has also responded to the MoJ, saying it was ‘disappointing’ that the FLBA and Bar Council felt the need to ask for an independent review, which it said would be ‘neither warranted or helpful’.
‘We have not seen any evidence to support the need for this; and indeed, anecdotal reports from our respective members, including barristers and leading judges, do not demonstrate that the concerns expressed in this letter are widespread (and in many areas, they do not exist at all),’ it said.