The Family Advocacy Scheme (FAS) is a regime that provides payments for hearings and advocates’ meetings. It applies for legal aid certificates issued from May 2011 onwards in certain types of family cases. Preparation is undertaken in connection with the hearing, time spent at Court and time travelling to/from the hearing are all covered by the fees and are payable to in-house advocates (solicitors) and self-employed advocates (counsel). Different payments apply depending on the type of case and type of hearing.
The scheme applies to five categories of cases:
- Care and supervision proceedings
- Other public law cases
- Private law children proceedings
- Private law Finance cases
- Domestic abuse cases
The fee is fixed so that the same amount is payable irrespective of how many parties (or which types of parties) are represented. However, it should be noted that in relation to private law finance cases there is an early resolution or settlement fee payable if the case settles at the first appointment or at the finance dispute resolution hearing (FDR).
Interim hearings attract a lower rate of FAS than final hearings, and are paid on a time spent basis. A final hearing is paid simply at a daily fixed charge, taking into account the number of days the final hearing was attended. The hearing units under which interim hearings are paid under FAS will either be ‘Hearing Unit 1’ or ‘Hearing Unit 2’. Hearing Unit 1 is payable where hearing time is 60 minutes or less. Hearing Unit 2 is payable where hearing time is over 60 minutes but 2.5 hours or less. Only one of these types of Hearing Units is payable in respect of a hearing: if the hearing time is in excess of 2.5 hours, multiples of the 2.5 hearing units (Unit 2) are paid. Time is deducted for any lunch adjournment taken, and this is indicated on the advocates attendance form. If a public law case concludes at an Issues Resolution Hearing the hearing can be claimed as final hearing. Additionally finding of fact hearings count as final hearings for the purposes of FAS.
The amount claimed under FAS also depends on the case type – the two types of proceedings in which I have claimed under FAS so far have been Care and Domestic Abuse proceedings. The fee for a hearing also depends on the level of Judge/Court the matter is heard before. The lowest rates are claimed in front of a lay bench, with the highest being claimed at a hearing in the High Court.
There are also a few ‘bolt-ons’ that can be claimed which result in an additional % uplift being applied to the FAS fee. In public law children cases, the bolt-ons are
- Representing a client 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;
- Representing a person at a hearing who has difficulty in giving instructions or understanding advice; or
- A hearing involving the evidence of an independent expert witness who is being cross-examined and substantially challenged by a party at the hearing.
In private law children cases, the significant harm and expert cross examination bolt-ons can be claimed, but not the representation of a person with difficulties communicating.
Along with these bolt-ons, it is possible that an Advocates Bundle Payment may be claimed once the bundle exceeds 350 pages. In public law children cases bundles may be claimed for no more than two interim hearings. Each of these must either be a case management conference/hearing, an issues resolution hearing or otherwise a hearing that is listed for the hearing of contested evidence. An additional bundle may be claimed for the final hearing. In private family law cases only one interim bundle payment can be claimed for Children and one for Finance if applicable.
On the advocates attendance form, Payment 1 can be ticked if the bundle is between 350 and 700 pages, payment 2 for over 700 pages, or payment 3 if the hearing is final (or classed as final subsequently) and the bundle is over 1400 pages. It is important to note that bundle fees paid to counsel count towards the limit of bundle payments claimable.
It is also possible to claim an exceptional travel bolt-on where the journey from the advocates’ office or chambers to the court (or location of advocates’ meeting or conference) is over 25 miles each way, subject to reasonableness and taking into account the most direct route..
The fee claimed under FAS is recorded through use of an advocates attendance form. The fee earner fills out the applicable boxes on the form to indicate what type of hearing it is, the date, how long the hearing lasted, any bolt-ons claimed, the type of proceedings, and so on. Once the hearing is finished, this form is signed by the judge. They are then submitted to the Legal Aid Agency (LAA) together with the bill of costs.
It is usually envisaged that there will be two advocates’ meetings in care proceedings. Any further advocates’ meetings claimed after the first two will need to be shown to be authorised by including the court order that directed the meeting in the Bundle for Assessment sent to the LAA.
Advocates’ meetings fees cannot be claimed in Private Law cases. Any work undertaken by the solicitor in relation to advocates’ meetings (or similar) in private law children cases should be claimed under the Private Family Law Representation Fee scheme.
Exclusions from FAS
A number of types of proceeding are excluded from the scheme. These are:
- International child abduction cases
- In proceedings for a parental order under the Human Fertilisation and Embryology Act 2008
- In proceedings for wardship
- In proceedings for nullity or annulment of a civil partnership
- Defended cause for divorce or judicial separation or for dissolution of a civil partnership or the legal separation of civil partners
- In proceedings under Part 4A of the FLA 1996 – applications for forced marriage protection orders
- In proceedings in which the advocate separately represents a child other than proceedings which are specified proceedings within the meaning of s41(6) Children Act 1989 or are heard together with such specified proceedings
- In proceedings under the Trust of Land and Appointment of Trustees Act 1996
- In proceedings under the Inheritance (Provision for Family and Dependents) Act 1975
- In proceedings before the Court of Appeal or Supreme Court
- In proceedings under the inherent jurisdiction of the high court in relation to children
- In an appeal against a final order
- Under an individual case contract for a very high cost case
- Adoption – but only if the child is the party represented (rather than parents or other parties)
Any advocacy undertaken by Queen’s Counsel will also be excluded from the scheme.
For any family cases excluded from FAS, the advocate should be paid at the appropriate hourly rate.
The Family Advocacy Scheme is a national scheme, and so the provider’s location or the hearing location are not taken into account when calculating the fee. Additionally, no uplifts can be claimed for a fee earner’s panel membership and therefore the fees are the same irrespective of which fee earner conducts the matter.
Written by a trainee at Bidwell Henderson