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Keep feeling FAScination, or Bolt-On Wanderers

(Yes, two awful puns in one title)

If you do any advocacy in family proceedings, you will be familiar with the FAS form  (the Family Advocacy Scheme) that the advocate has to hand in to the Court to have stamped, in order to get paid for their work.

It is a peculiar creature, and the scheme has been plagued by inconsistencies about what one has to have stamped, or signed, or initialled.

If you are not the advocate, but another participant in the hearing, you may have wondered what that form was all about. It all seems very unseemly that you see advocates at the end of the hearing waving pieces of paper about like a bunch of Tory backbenchers

You can find the form here

http://www.justice.gov.uk/downloads/forms/legal-aid/advocates-attendance-form-0212.pdf

The FAS form came about in part because the previous form called SIPS had allowed advocates to claim some time for “special preparation”  i.e that the case had taken more hours of preparation than one would usually expect. There were suspicions (and in one high profile case, more than suspicions) that these “special preparation” hours were sometimes padded to make the attendance at Court pay a bit better.  Everyone has to eat, after all.

The other big change about FAS was that it suddenly applied to solicitors as well as barristers, and that while it was a reduction in fees for a barrister, it was quite an increase for solicitors, making advocacy now the ‘juiciest’ part of a case for a solicitor to do, thus placing solicitors and barristers in competition for the advocacy task in cases.  Classic divide and rule stuff.

The first thing this FAS form ushered in was the need for advocates to record on the form :

Start time or time court required you to attend (if earlier):

And that in turn ushered in the otherwise inexplicable practice of everyone wanting to turn up an hour before the hearing starts, and the Court orders always incorporating a direction that they do so.

The next peculiar things relate to the “Bolt ons”, or uplifts to the fee for attending.

There are 4 of them :-

1. Representation of a client who is facing allegations that they have caused significant harm to a child which have been made or adopted by the Local Authority and are a live issue in proceedings

2. Representation of a person who has difficulty in giving instructions or understanding advice

3. The evidence of an independent expert witness being cross-examined and substantially challenged by a party at the hearing

4. The size of the Court bundle  (there being a higher fee once the bundle passes 350 pages and then another higher fee once the bundle passes 700 pages)

The first 3 represent a 25% increase each.

To be honest, there’s an element of that that seems fair enough. If you are representing a parent who has learning difficulties or mental health problems, then explaining the process, taking instructions and getting a sense of what is happening on the ground is harder.  [Although helpfully, you don't get the bonus unless there's a cognitive assessment, so the first hearing, where you really earn the money, you don't get it, and the later hearing where you take instructions from the Official Solicitor and the task is made easier, you then do get it]

Likewise if you are going to a hearing knowing that you are going to need to cross-examine an expert then you have to put more work into it.  And if you are going to have to read 700 pages rather than 350, it takes longer to read them.

But as any economist would tell you (and sadly, the LSC don’t seem to have asked any), if you give any group of individuals a reward and remuneration system based on certain indicators, they will work at meeting those indicators. It’s called ‘gaming the system’ and is found in pretty much any walk of life where there’s a performance related pay system.

For example, the LSC wanted to pay advocates less for any hearing that took less than an hour. That seemed like a pretty smart scheme, but in reality, it was only going to have two outcomes (as the payment for doing a hearing less than an hour was perceived as being far too low)

  1. If the start clock for the hearing time starts at 10.00am (when the Court starts hearing cases), then nobody would be ready before 11.00am, to make sure they go into the second hour and get a proper payment.  Thus keeping the Court waiting, and losing one of the five hours of Court sitting time a day. So yay, reducing effective Court sitting hours by 20% !
  1. OR, and the above is why it happened, the Courts acquiescing to the request of advocates for a direction that they attend at 9.00am, or 9.15am, so that the clock just starts running earlier.

Another example would be that it now being rewarding to pad the court bundle out with documents to get it past the 350, or 700 page mark (and ideally documents that don’t really have to be read that thoroughly) led to a proliferation of contact notes, medical records, police disclosure, foster care diaries and such to go into the bundle.  That in turn leads to the cost of everyone else reading them (assuming they get read at all)

Don’t get me wrong, there are occasions when those disclosure documents are very important and necessary – but they don’t go in only when important and necessary, but as run of the mill.  And there’s no attempt to try to agree the key pages and winnow the disclosure documents down   (firstly because nobody really reads them to find the key documents until the days before the final hearing, and secondly because why would you want to spend hours reading them in order to winnow them down so that you can cut your fees?)

And then we have the peculiar quirk in the section of

 Representation of a client who is facing allegations that they have caused significant harm to a child which have been made or adopted by the Local Authority and are a live issue in proceedings

[25% bonus to the fee if it applies]

Firstly, that it only applies where the allegations are a ‘live issue’ in proceedings.  That means there is no bonus in cases where the threshold has been agreed   (which is something the court tries to encourage, as part of the process of narrowing the issues and to concentrate on those things that are in dispute) or determined by the Court.

Secondly, the criteria for what constitutes significant harm is a little perplexing, since it is not ‘significant harm’ in the sense which is defined by the actual bloody Act that we deal with, or the wealth of caselaw by which that definition has been polished, glossed and finessed, but instead a particularly narrow subset of it :-

For the purposes of the bolt-on the following conditions constitute significant harm:

 

a) death

b) significant head and/or fracture injuries

c) burns or scalds

d) fabricated illness

e) extensive bruising involving more than one part of the body

f) multiple injuries of different kinds

g) other significant ill-treatment (such as suffocation or starvation) likely to endanger life

h) sexual abuse.

You will note that the big loser here is neglect  [and also emotional harm]. Unless the neglect is likely to endanger life (which is very rarely the case), you don’t get an uplift for neglect.  But you will get an uplift if the child has five bruises, even if that’s a really small part of the threshold.

Anyone who has done care proceedings knows that neglect cases require a lot of thought, a lot of effort, a lot of preparation and really are cases where the ‘devil is in the detail’.   An advocate representing a parent in a case where the harm alleged is neglect is going to have to go through a wealth of material often many years of records, looking at reports of home conditions and children’s presentation, watching how they fluctuate, looking at the support that has been offered and how that has impacted, looking at the chronology for periods when the care was good enough and Local Authority concerns subsided, working out how best to refute the allegations of neglect, or to reduce the risk for the future, how to get the situation to a level where the Court can have confidence in the future care of the children.

If you add into that mix that the child also has five bruises, and that finds its way into the threshold, the advocate will get 25% more on their fee, when the extra work involved is really looking at one medical report, a bodymap and perhaps some GP notes at around the time the injuries were observed.

 

Frankly, if the potential consequences for a parent of the allegations of significant harm are that they might lose their child, even temporarily, isn’t that the key aspect which means that they want their advocate to be totally prepared and recompensed properly to fight their case?

 

You probably can’t ever design a scheme for the payment of advocates which is flawless, but this particular one has ended up with Courts routinely directing parties to attend an hour before the hearing with no thought as to whether that’s actually necessary   (including doing that for hearings where there will have been an advocates meeting the night before to get an order pulled together), an expansion of court bundles, and there being no recognition that preparation and defence of neglect cases is actually pretty labour intensive compared to a case of five bruises.

I do miss the old days where we just wrote on the directions “Certified fit for counsel” and any grubby issues of money were dealt with solely by the clerks and nobody at the Court ever had to think about money and fees and could focus exclusively on the case and the client.  I really don’t like those forms being handed in at the end of the hearing, just at the time when the client really needs 100% focus on them.

It does feel to me like a shame that so much of our hearings these days seem to be focussed on money, and who is going to pay for this and that, whether the LSC will pay for this or that, what the expert is going to cost, what can be filled in on the FAS form, whether the LSC will accept the FAS form if the Judge hasn’t initialled it here, here and again here.

In a Jonathon Swift style suggestion, perhaps in the interests of making advocates feel too ashamed to hand in the form and thus reduce costs, the LSC should name the next form “Ski-holiday fund form”  or “the ME-ME-ME” form, and insist that if advocates do not hand it up to the Judge in front of the clients saying “May I now hand in my Ski-holiday Fund form?”  it is null and void.   Further protocol should be for the Judge to look at the form, whistle in amazement and say the phrase “Gosh, you’ve done really well out of this, haven’t you? Bet you’re off shopping now at Harvey Nicks”   or alternatively, depending on circumstances “Bloody hell, money for old rope” *

And now, because it is Friday, and it is an excuse to please some of my readership, here is a picture of the handsome Michael FASSbender

to be fair, he is handsome

* That is intended to be satirical. Good Barristers do work very hard for their clients and put in long hard and unsociable hours, and those doing care work don’t necessarily  live a salubrious lifestyle, and some of them are allergic to fondue and don’t go ski-ing.

[And last minute edit - I am being too harsh overall - the vast majority of advocates are worse off under FAS then they used to be and are doing the same hard job for less money, and nobody wants to do that.  It only takes a few of the sharper advocates, the Edgar Venal's of this world (as if he would sully his hands with care work) to make the system's rules favour them to create that bad impression. I honestly don't like, and never have, the idea that the last thing we do in a court hearing involving people's children is connected with getting paid and think it is ugly and charmless that the system forces advocates to do it. Also in fairness to FAS I should have said that the one really good thing is that finally, one gets paid more for representing parents - which is the hardest job and one which takes the most preparation, than for representing the child]

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