Barristers practising in the field of family Law may be forgiven for thinking they have become insufficiently appreciated over the last year, wondering if the family Bar might go the way of the defended divorce.
For over two decades, the family Bar has flourished. The scarcely justifiable clockwork routine work of undefendeds at £12.50 for five unopposed minutes became the lawyerless rubber stamp of the special procedure decree. In its place new and real work sprang up.
The combination of the discretionary ancillary relief code, the boom in house prices and Eighties prosperity created an entirely new form of practice. The Children Act 1989 replaced wardship as the new forum for care work.
More exacting standards of documentation, in particular judicial decisions sanctioning disclosure of social work and other records, made cases if not longer then at least bulkier.
Little wonder then that membership of the Family Law Bar Association has climbed to its current level of around 1,400, making it the largest and most active of the professional Bar associations.
With the divorce rate steady at more than 150,000 dissolved marriages a year, it might be thought that practitioners at the Bar have little to fear in the way of obsolescence or legal downsizing. This is not the case any more. Solicitors with rights of audience are beginning to graze in fields the bar thought reserved to itself.
Solicitor advocates commonly appear on behalf of guardians in care cases. The legal aid budget, which has soared within sight of £1.3 billion, of which about a quarter is spent on family law work, has come under unremitting from the Treasury.
There has been a noticeable tightening and reduction of fees allowed on taxation in legal aid cases. Taxing officers are far less sympathetic to claims to allow taxation off the standard scale and on to discretion. Fees in care work are on a downward trend, because local authorities are reluctant to commit themselves to the expense of complex cases or to pay fees at the former rate when formal proceedings are unavoidable.
The Government is impatient to introduce a new, tighter regime. In July, proposals for standard fees with no discretion were tabled by the Legal Aid Board and the Lord Chancellor's Department. It is intended to table new regulations by February 1997 for implementation in mid-1997. The new rates, if proposals are not amended in the limited consultation process, will mean a sharp reduction in fee earnings from longer cases, especially those involving senior barristers and QCs. The effect of franchising is unclear and the impact of block contracting, if introduced on the supply of work to the Bar, is a darker threat still.
There is a similar trend in private work, especially in financial disputes. Judges have been expressing increasing disquiet at the cost of ancillary relief cases. In a recent judgment, Mr Justice Thorpe said of the combined costs of £1.44 million that “expenditure in legal costs of this magnitude is unacceptable. As a society it is incumbent upon us to develop systems for the determination of financial disputes at a much more reasonable cost.”
He no doubt had in mind his own role as the driving force of the Lord Chancellor's advisory group on ancillary relief procedure in pressing procedural changes on a reluctant LCD. The pilot scheme, which will apply in the principal registry and 57 county courts from 1 October, is intended to cut down the delay and expense. A mandatory early dispute resolution without prejudice meeting is built in. The aim and likely result is to cut the number of contested financial applications that go the distance and to reduce the costs of those that do.
None of these developments are occurring in a vacuum: Lord Woolf's proposals for civil procedural reform are no less radical in their assault on a legal culture said to have become inflexible, expensive and incapable of delivering a volume product at a low price.
Reform will come but it will place a premium on comp-etence and mastery of its new rule. There is no reason why the family Bar should not master change and provide a flexible response. Its members have the skill and experience and the advantage of the Bar's structure of low overheads and flexibility.
Members have already shown readiness to exploit information technology and may be better placed than solicitors to adapt to the brave new world our masters are trying to shape.