“Paedophiles to lose parental rights” – but what does that actually mean?

[UPDATE – there is an update at the end of this post]

Last week, I found myself unexpectedly recording an episode of BBC Newscast with Sanchia Berg and Harriet Harman MP. The prompt for the episode was a reform to legislation proposed by Harriet Harman, supported by the Lord Chancellor and currently under consideration in Parliament. The amendment came about as a result of coverage of a family court case by Sanchia Berg last year. That coverage had only been made possible by the transparency reforms that were being piloted in family courts, which made it easier for reporters to report private hearings. Ostensibly, I was on the show to discuss those transparency issues, and made clear I wasn’t familiar with the detail of the proposed amendment (and there was no time to research it before the recording), but in fact the discussion was focused primarily on the proposed law reform that it was said would result in ‘paedophiles losing parental rights’.


The recording is now available on BBC iPlayer here. In fact, although it’s seamlessly done and imperceptible to the listener, there are some chunks of what I said which have been edited out (this is quite normal, as pre-records are often longer than the slot the finished product must fit in, but I do think some of the sense of what I had said has been lost in editing).


One of the things that was edited out was my query about the scope of the amendment. I wanted to go back and re-listen to Harriet Harman’s response to my query – but in fact that has gone too. I think that’s a shame, particularly because now I’ve been able to sit down and look up her amendment I can see my query was a legitimate one. My impression of Harman’s response was that it was something that hadn’t actually been considered or bottomed out, though I can’t verify my recollection by listening back to it.


The Newscast episode also briefly alluded to the reform of the law in 2009 to permit reporters to attend family court hearings, swiftly followed by much upset when it became clear that the reforms didn’t change a thing about how much could be reported. That was frustrating for everyone, and so this post is intended to try and avoid a situation where, like in 2009, everyone gets very excited by a law reform which doesn’t in fact do quite what everyone had assumed it would.


The proposed change


Those I have spoken to who had been following the story had understood ‘paedophiles to lose parental rights’ to mean something quite different to the actual effect of the amendments as currently drafted, and were surprised to find out what it actually does and doesn’t do. As far as I can see, the coverage of this story hasn’t linked to the actual amendment, and I thought it was important to check the headlines and media reports against the draft legislation.


So, in this post I am absolutely not advocating for one reform or another. I am not criticising the amendment itself – Harriet Harman gives a fascinating account in the podcast of all of the work that has to be done, and the things which have to fall into alignment to get an amendment through – it is a combination of both hard work and luck that there is any amendment at all. But I am trying to understand what this reform actually IS and to manage expectations through analysis of the amendment as drafted against the existing legal framework.


There are other aspects of the podcast episode which I’m not dealing with in this post – it is quite long enough. But there were a couple of oddities in the history of transparency reform given by Harriet Harman, and I don’t think she has quite got the history right. I’m also not considering what Harriet Harman said about the ‘carve out’ to preserve fathers’ rights, which is a piece of law reform history that I’m not familiar with and have not yet had time to track down and fully understand.


I would hope that future Parliamentary debate and media coverage of this issue is able to encompass the point I am going to explain here about the scope of the amendment, because I think that so far it is absent from coverage I’ve seen. That isn’t a criticism of the coverage to date (my explanation is far more long and windy than the mainstream media’s necessarily tight word counts will allow), but I do think it’s important that people understand what the reform will and won’t do.


What led to the change


So, to backtrack to the original issue. Sanchia reported on a case where a father had been convicted of multiple sexual offences against children. He was barred from contact with children but retained his parental rights (including a say in foreign trips, education etc). The mother of his daughter was concerned about what would happen when he came out of prison and how he might try to exercise parental responsibility (‘PR’). She applied to the court to restrict his PR. She invited journalists to attend because she felt it would ensure a fair trial and because it might lead to change. The judge did agree to restrict the parental responsibility, and according to the BBC (the judgment hasn’t been published) the judge made an order confirming the child should live with her mother, and the father is now forbidden from any contact with his daughter until she turns 18. The judge also made a barring order preventing any applications from him without permission of the judge – but the application took many months to resolve and the legal fees had to be met by the mother.


Sanchia tells the story of how she exposed this ‘glaring legal anomaly’ by reporting this legal issue here. You can read Sanchia’s recent piece focusing on the reform here, and the original coverage from November here.


What the reporting doesn’t spell out is that because the father was married to the mother when the child was born he had automatic PR, which the court has no power to remove (except through adoption). The court is permitted to restrict the PR of a married father where appropriate, which is what the court agreed to do here. Many fathers have PR because even though they weren’t married to the child’s mother their name is on the child’s birth certificate, or because that PR has been awarded by the court (these are the main routes). Under s 4(2A) Children Act 1989, the court is allowed to completely remove PR from those fathers where that is justified – but that section doesn’t apply to married fathers. In each case though, the court is required to consider the background, the risks and benefits before making a decision about restricting or removing PR.


It is clear from the initial report and the reports of the outcome of the case that the mother’s concerns were (understandably) not just about removal or restriction of parental responsibility, but also about potential future contact between the father and child – it is recorded in November that the mother was ‘asking the court to remove her ex-husband’s parental rights and ban all contact – direct, indirect and through social media – until their daughter turns 18’, and it appears that the father was asking for indirect contact and potentially had aspirations to more in the longer term: ‘He hopes he can be reassessed when he’s released and requests an annual report detailing how his daughter is doing.’


So much for the background. What does the amendment actually say and do and how does it change the existing law?


What the amendment says


When I went on the podcast I assumed that Harriet Harman had planned to amend part 1 of the Children Act 1989, which is where parental responsibility is defined and the framework for it being granted and removed is set out. Having now checked the amendment (to the Criminal Justice Bill) it does precisely that, by inserting a new section 2A. You can read it here https://publications.parliament.uk/pa/bills/cbill/58-04/0155/amend/criminal_rm_rep_0419.pdf (see page 2), but as its quite short I’ve set it out in full below.


Removal of parental responsibility for men convicted of sexual offences against children

After section 2 (parental responsibility for children) of the Children Act 1989, insert—

2A Prisoners: suspension of parental responsibility

(1) This section applies where— (a) a person (“A”) has been found guilty of a serious sexual offence involving or relating to a child or children; and (b) A had parental responsibility for a child or children at the time at which the offence was committed.

(2) A ceases to have parental responsibility for all children, for a time specified by the sentencing court or until an application by A to the family court to reinstate parental responsibility has been approved.””


What does this mean in layperson’s terms?


It means that for mums like Bethan, the mum in Sanchia’s report, she would not have had to go to court to curtail the father’s PR. Note that the conviction doesn’t have to be for sexual abuse of the child that the offender hold PR for – he just has to be convicted of a relevant offence against any child and the amendment will take effect. It would happen automatically. It would mean that (subject to a successful application brought by the father) the mother could make most decisions about the child without reference to the father. That would include foreign travel, religious upbringing, education and as illustrated here in a report about another similar case, a change of surname.


However, the amendment won’t stop the father making an application to court to get his PR back, and if he did, the mother would not be guaranteed to be provided with legal aid.


Importantly – and this is the point that I raised with Harriet Harman which was edited out – the amendment doesn’t have any bearing at all on contact. The coverage slips between the terms parental responsibility and parental rights but in fact they aren’t the same. Parental responsibility is one aspect of parental rights, but there are other rights that a father has even if he does not have PR. For example, any father, even if he doesn’t have PR is entitled to make an application under s8 Children Act 1989 (which includes contact applications) without permission. This is set out in s10(4)(a) Children Act 1989. The Harman amendment doesn’t amend s8 or s10 of the Act. S8 also allows a father with no PR (including one with suspended PR under the amendment) to apply for an order prohibiting a change of name, foreign travel or specifying the school the child should go to, or the religion they should be brought up in. That’s not to say such an application would succeed, but nothing in the amendment prevents a father from trying – or protects a mother from the consequences of him doing so.


If Bethan’s case happened under the proposed new law, she would still have had to apply to court if she wanted an order saying the child should live with her (which is sometimes helpful when travelling abroad or dealing with authorities), that the father should not have any contact for the remainder of her childhood or for a barring order stopping contact or other applications.


Just because the law says a father is entitled to apply to court doesn’t mean, of course, that his application would be successful. Given the same facts, the court would still be likely to reach the same conclusions it did in Bethan’s case – but one of the key issues highlighted in Sanchia’s reporting is the cost (emotional and financial) on a protective parent (Bethan) of having to apply, and of having to trog through the process – even when it comes to the ‘right’ decision. Harriet took issue with my suggestion that the big issue was the process a protective parent had to endure, but it is undoubtedly a huge burden for a mother like Bethan to bear, even if the court deals with the application relatively swiftly (as it did in her case). Where Harriet is right is that the answer lies in primary legislation – the court itself has to adjudicate fairly in respect of rights which exist. If it is said they shouldn’t entertain such applications at all, or that a parent with rights should have to show why these should continue rather than the other way around, then law has to change. Once it has changed, the courts will apply the new law.


I think this amendment will help tackle the problem of the burden being on the protective mother, but I don’t think it will completely eradicate it. If a determined and manipulative father has his PR suspended as a result of this amendment, he can still apply for the suspension to be lifted, or simply take another tack – by applying for some other order under s8, for example, arrangements for contact. If he did, the court would most likely reject them, but not before the mother was put through the process. I do think that (as in Bethan’s case) courts in recent years are much more attuned to the harmful and potentially abusive or retraumatising impact on carers and children of the court process itself, and are much more ready to make barring orders than they used to be – but these are not guarantees for an anxious parent.


It would be possible for an amendment to also suspend the right to apply for s8 orders, for example by amending s91(14) so that a barring order was automatic on conviction – but that isn’t currently proposed.


Legal aid


I note also that when then chair of the FLBA Hannah Markham KC was asked for a quote about this piece in November she pointed out the absence of legal aid for mothers like Bethan, and how changing the rules around legal aid might assist protective parents like her. The amendment does not alter the fact that IF the father were to apply to court the mother may well not be eligible for legal aid to respond to his application, and if a future Bethan wanted to apply for a barring order or some other safeguard her legal aid eligibility would be no different either. Again, it would be possible if Parliament wanted to, to provide for legal aid for mothers responding to applications by fathers convicted of sexual offences against children, but the amendment as drafted doesn’t do so.


Other related amendments


There are a number of other draft amendments to family law currently in Parliament. Those include ‘Jade’s Law’ (which relates to the suspension of parental responsibility for parents convicted of murdering the other parent – or, if Baroness Chakrabarti’s further proposed amendment is accepted of a sexual offence against a child of the family the other parent*), and one relating to psychologists. I’m not dealing with those here, but they are contained in a different Bill – the Victims and Prisoner’s Bill.

* error corrected



I’m not a Parliamentary process expert at all, but my understanding of the position with this amendment is that Harriet Harman is confident it will pass because it has cross party and governmental support, and even if a General Election is called before the Criminal Justice Bill that it belongs to has passed, this amendment will pass as a result of the ‘wash up’ process, which fast tracks through uncontroversial agreed law reforms before Parliament is dissolved. By my understanding therefore, although it would be possible to draft amendments that would expand the scope of the reform, so as to remove ‘parental rights’ in the broader sense that I think many readers are expecting, or which would give some legal aid protection to mother’s dealing with litigation arising from these issues- there is not much realistic potential for the amendment to be adjusted in the course of this Parliament. I might be wrong about that, and if so perhaps Parliamentarians will give some more thought to whether the amendment will completely achieve what it sets out to do, and whether it might be adjusted to achieve those aims more fully.


A quick anticipatory word about sexism: the heading to the amendment references ‘men’ only, which creates an impression that it will only apply to men. However, in fact the heading isn’t relevant – the substance of the amendment is drafted in sex neutral terms (‘person’) and is not limited to male sex offenders. However, the clear intention of the amendment is to protect children from fathers who are sex offenders, no doubt on the basis that the vast majority of sex offenders are (biologically) male, and in reality the reform is most likely to apply in practice to men, and to be relied upon by mothers. If a mother were convicted of a relevant sex offence my understanding is that this reform would apply equally to her. Although there are some legal differences between mothers and fathers when it comes to PR (all mothers have automatic PR which can’t be removed except through adoption, whether married or not) those differences don’t have any impact on this amendment.



Important note for non-legal readers:


The Harman amendment is not yet law. It is likely to become law by the end of 2024, but at the time I’m writing this post it is not possible to say whether it will be amended before it is passed, or indeed to confirm with certainty that it will pass at all.


Update 10 May 2024

Shortly after I posted this a related post was published by one of the team at The Transparency Project. That explained about some related amendments that were also being discussed in Parliament. I had intended to pop an update on this post to link through to that additional context – but failed to do so. However, you can read that post here: ‘Paedophiles to be stripped of parental rights’? and other failed legislative amendments.

Anyway, I was prompted into remembering by this announcement from the Ministry of Justice ‘Child rapists to automatically have parental responsibility stripped’.

As best I can tell without spending more time cross referencing bills and amendments than I have to devote to the exercise, the ‘amendment tabled today’ [10 May] is actually an amendment in the Amendment paper relating to the Criminal Justice Bill for Monday 13 May, which you can read here. The corresponding / preceding paper dated 10 May still contains Harriet Harman’s amendment as described above. The 13 May document has a set of amendments which create a new s10A Children Act and amend another bill in Parliament (Victims and Justice Bill). This set of amendments are in some respects broader than the Harman amendment (they also encompass a restriction on PR where a parent kills another), but in others narrower (the restriction on PR is only for a more limited set of sexual offences and only in respect of some children), and the mechanism for restricting PR is less straightforward.

It’s beyond my knowledge and understanding how the two sets of amendments interrelate, but I can’t see both will go through, and assume the latter amendments announced today will take priority and the Harman amendment will fall away. IF that is the case, I *think* that the replacement amendments do not remove PR as much as they restrict its exercise (by getting the Crown Court to make a Prohibited Steps Order. I don’t think that is the same thing at all, because a parent does not need to exercise PR in order to be entitled to certain treatment (for example notice of proceedings, right to be consulted, consent to adoption). I don’t really have the headspace or time to properly analyse the wording, but I think that the legal effect of this mechanism is probably quite different. Neither of the amendments stop a father from applying for contact, regardless of PR, but (as I suggested above) the power of the family court to make orders under s91(14) could be used. However, it can’t be used without an application having first been made (i.e. it can’t stop the first application before it happens) and a s91(14) order doesn’t deal with situations where a parent is notified as a respondent or potential respondent to proceedings (for example care, placement or adoption proceedings).

Anyway, much to think about and chew over. But I will leave it to others to work this through for now – I will dedicate some more energy to unpicking it all once we are completely clear what amendments are approved by Parliament. At the moment it is too much of a moving target to tackle.

The trans debate (no, not that one)

Sorry. Cheap headline, it’s not about that. Been talking to a mate about transcripts. Yeah, that’s how we lawyers roll.

We were pondering the judgment of Lord Justice Peter Jackson in M (A Child: Leave to Oppose Adoption) [2023] EWCA Civ 404. Ostensibly it’s (another) judgment about leave to oppose adoption – but it also contains a potentially important bit of guidance about transcripts.

It’s only short, so you can have it in full:

Transcripts of judgment in placement order proceedings

5. A decision to approve adoption as a child’s care plan is of huge importance to the child, to the birth family and to the adoptive family. The reasons for the decision will appear in a judgment or in justices’ reasons and are likely to be of interest or importance to anyone concerned with the child. They may also be important to the child in later life. There is therefore a duty on the court and on the local authority to ensure that the record is preserved. Considering the amount of care and expense that will have been invested in the proceedings, that seems elementary.
6. A further reason for creating a record of the reasons for a placement order is that the order may not be the end of the litigation about the child. The court may have to consider an application for permission to apply to revoke the order or an application for permission to oppose the making of an adoption order. In this situation, it may be difficult to deal with the application fairly without sight of the judgment that was made at the time of the placement order. In particular, as my Lady, Lady Justice Macur noted in Re S (A Child) [2021] EWCA Civ 605 at [32] a transcript provides the baseline against which to assess whether there has been a change in circumstances.

7. Accordingly in my view, when giving reasons for making a placement order, the court should always order the local authority to obtain a transcript of its judgment, unless it has handed down a written version or made arrangements for there to be an agreed and approved note. The same applies in cases where a final care order is made, though that is not the focus of this appeal.

I’d thought it was pretty straightforward: the LA must always ensure it has an accurate record of the reasons for a decision about adoption – If there isn’t a written form in existence the LA must get one. They will be needed for the benefit of the child later on – either to assist the court in the case of any application for leave to oppose / revoke the placement order or for the benefit of the child for some other reason – for therapy or life story purposes.

But I gather there may be some concern abroad that this might lead to local authorities expecting advocates to agree notes instead of paying for a transcript OR trying to get the legally aided parties to pay a share. To which my response was along the lines of: ‘Whaaaaat? I don’t flipping think so!’

My recent experience (for what it’s worth), independently of and prior to this judgment, is that when I’ve suggested the LA obtains a transcript for later life story work / for the child as an adult or for the assistance of carers or therapists, nobody has objected or suggested that the cost should be split. It has just been accepted as a part of the LA’s responsibility.

My mate however, suggested that the LA will simply tell their advocate to sort it out and agree a note, without increasing the fee. Some might try it, I concede. But of course this wouldn’t only place a burden on their own advocate, it would also place an additional burden on everyone else. And personally, I think it would be legitimate for those advocates to object (pssst, and I think you should).

There is (of course) a general duty on an advocate to keep a note of proceedings, and to agree a note of judgment where its required – but typically that might be when there is an urgent appeal (see PD30A), or where a recording is not available for some reason. But an appeal or missing recording is not a frequent occurrence – it is the exception not the rule. This judgment isn’t about the exceptional cases, it’s about the generality (the majority).

In most adoption cases the advocates will (bar the LA) be on graduated fees. It cannot be right that now in almost all such cases an additional burden is placed upon them to agree a note of what can often be a really lengthy judgment. In fact in my experience a judge will often explicitly say ‘oh you don’t need to take a note, i will order a transcript’. And I love those judges a lot (though still find myself compulsively typing ‘just in case’).

More to the point, the logistics of getting four (plus) advocates to agree a note of judgment in multiple cases across their caseload doesn’t bear thinking about. It’s bad enough getting replies about the order. I just don’t see it working. We manage to sort notes of judgment occasionally, but not routinely. Consider (I wince) what happens when a judge requests help with anonymising a judgment. Yeah, big fat tumbleweeds. Not happening.

But I am not even sure one needs to revert to logistics to ‘win’ this argument (should one ever need to have it). The legal aid agency won’t pay for a share of the costs of a transcript without cutting up rough, and solicitors just want to get their cases closed and billed once judgment is delivered (and if the LAA were suddenly expected to contribute to many hundreds more transcripts each year I expect they’d sit up straight and start actively refusing). The advocates should not be expected to pick up the ‘cost’ by doing this work for free.

But the answer is in Peter Jackson’s judgment (it always is #amirite?): the purpose of preserving the written record is to facilitate the care plan and to benefit the child. Even in the absence of any application for leave to oppose, a purpose of general application across all adoption cases will be that the child will need this key document on their file. It is a document that the local authority needs in order to fulfil its obligations to the child. Much as a LA pays when it commissions an ISW to fulfil its statutory obligations to assess, here it must stump up to ensure it has a clear record of the decision which underpins its work going forwards. ‘Elementary’, (says) my dear Jackson.

So: The Local Authority should pay. Legal aid lawyers should resist their client’s certificate bearing a portion of the cost burden on this basis, and local authority lawyers should advise accordingly.

Ensuring there is a record of the decision and its reasons is primarily a matter for the Applicant and / or the court (though I don’t rate the argument that the costs of such a judgment should be at public expense because if that were so it could be argued in almost every single case regardless of the ability of the parties to pay – and in general terms the court discharges its duty to record decisions by recording the hearing and making it available for the purposes of a transcript on request). As the need to ensure there is a written record is a general requirement across all cases in this category, I don’t think its for the individual advocates in individual cases to pick up the tab as a matter of course here. And from a practical point of view this is in fact a substantial extra burden on overworked advocates that will simply result in delay in finalising judgments – and probably delay in other cases. Because advocates’ working week just can’t absorb this. As my anonymous mate says ‘it’ll be like herding cats’. Yeah, like herding slightly wild eyed over tired cats.

A subsidiary point is this (sorry, I just can’t help but notice)… if there are going to be lots more judgments in written form then we might reasonably hope that there would also be a few more judgments from these cases published. I won’t hold my breath on that one, because again the process of anonymisation (certainly if it is not built in to a judgment when delivered, or is not set out in instructions tot he transcriber at the start of the recording) can add a substantial time cost. One hopes that the mythical Anonymisation Unit will be sighted emerging from the lake soon.

There may be trouble ahead…

You might think that no news is good news. And that since the Qualified Legal Representatives (‘QLR’) scheme has been in force for 8 months, the comparative invisibility of it must mean its all bedding in nicely. Actually, it’s just bedding in verrrrrry slowly.

I am signed up to be a QLR, albeit for only a few courts local to me (more on why anon), because I think that its important that the scheme works, even if it is an inelegant solution to the problem at hand. But yesterday was the first time I’ve been asked if I could do a QLR case. Oddly, it wasn’t for a court I’d signed up for and rather than being directed to me personally, it was clearly sent to a number of people (bcc’d). And I wasn’t alone in receiving an email when I hadn’t signed up to that court. This suggests that HMCTS are having to abandon their rota system and cast the net far and wide to find a QLR for their case. Uh ohs.

The case was a two day Private Law Fact Finding in Truro with a 30 min PTR a month before. Judicial tier and bundle information were not provided, so it’s impossible to know exactly how much one would get paid for this work, but the email did tell me that both hearings are attended. Even though Cornwall in the summer is lovely, I’m pretty sure HMCTS are going to find this a tough one to get covered. The email tells me sternly not to reply unless I can help. Which I can’t. But I can explain why this case should forewarn us of far more abundant problems ahead.

Because the QLR scheme was only introduced for cases issued after 21 July 2022, and because court listing is backed right up, very few of eligible cases have reached fact finding stage so far. But they are distant specks rolling over the horizon now in great hordes, on the they will be on our doorstep pretty soon. This one is just the outrider. Imagine it replicated by the thousand up and down the country, like a swarm of orcs (apologies for the Lord of the Rings imagery, it’s on permanent loop in our house).

Anyway, let me explain why I’m worried.


You can’t get to Truro by train on the day for a 10am start. It takes between 3 1/4 and 4 ½ hours to do the journey. So a hotel is required. (I concede, a more energetic early riser than I could probably drive it – but its a 3 hour drive without stops and without traffic, and its about 340 miles – it’s not going to be any cheaper to drive and you’d have to leave at the crack of a sparrow’s fart to be sure of arriving on time).

It costs £94.20 (off peak return) to get from Bristol to Truro by train (I’m going to assume if the court are emailing counsel in Bristol they don’t have anyone closer. I had to check for midweek dates towards the end of May, which is when the train timetables run up to).

The Truro Premier Inn is showing a cost of £144 for 2 nights (for the May dates I checked). It’s a bit cheaper if you book an un-refundable room and pay in advance, but might as well burn your money as pay in advance for a hotel booking, because that increases the chances of HMCTS not being able to find a judge and notifying you of this at 3.55pm the day before the hearing (or of the case being pulled for some other reason) to approximately 98%. Obviously, other hotels are available and I’m sure Truro has some lovely B&Bs from the basic to the boutique, but B&Bs don’t always offer cancellable options and are a bit of a lottery. If one left the booking of a hotel until the last minute (which is what I’d do) I think it’s quite likely that availability/choice would be very limited and the cost materially higher.

So. The costs of travel and accommodation to these two hearings would be something like £166.20 (PTR) and £238.20 (FF) = total cost £404.40. If you assume there is no need to buy caffeine, water, breakfast, lunch and dinner whilst away. And if you ignore the cost of a taxi between hotel to court (Premier Inn is nowhere near the court).

But what might a QLR get paid for this tricky and important work, I hear you ask? I will walk you through the fee structure and the reality of what it looks like to a self-employed barrister.

Doing my back-of-an-envelope-best on limited information, here is my estimate of fees and likely real profit.


PTR fee for a hearing up to one hour = £68.94. No bundle uplift is payable. This hearing will earn an advocate a grand total of -£97.26 once travel and accommodation are deducted. And that’s if the hearing is before a District or Circuit Judge. If its before the magistrates (which many 2 day fact findings will be) the fee will be the even less grand £62.69 and the amount earned after travel and accommodation the even less attractive -£103.51. IF the hearing runs on for more than an hour the advocate will earn a bit more, but not a lot. So. This hearing will make a loss.

If the hearing were cancelled for a not-entirely hypothetical reason such as lack of a judge, lack of an interpreter or a failure in police disclosure, the advocate will be paid the fee (of £68.94/£62.69) if they have done more than 30 minutes of work. They will not be reimbursed their travel or hotel expenses whether or not the hearing goes ahead. Typically, cancellations for lack of a judge will be late in the afternoon the day before the hearing – usually too late to cancel a hotel.

An advocate who agrees to attend this hearing will be expected to:

  • read the bundle before the PTR (we don’t know how big it will be) for no fee,
  • meet the prohibited person (NOT a client) to establish what the key elements of their case are (NOT taking instructions),
  • prepare a document for the PTR (containing the not-instructions from the not-client),
  • prepare cross examination,
  • hope that the hearing runs on longer than an hour,
  • hope that the hearing goes ahead,
  • book out their diary for the 2 day FF hearing,
  • spend 3 nights away from home and approximately 14 hours on trains,
  • accept that if the main hearing doesn’t go ahead (or is postponed to a day they can’t do) they will make a loss not a profit.

Sounds great, dunnit?

Fact Finding Hearing

The fees are a bit better for the main hearing, but your hotel and travel costs will still not be reimbursed (this is why I didn’t sign up to do QLR work at Truro).

Day 1 will pay £545.91 (£496.30 if Magistrates). Day 2 will pay £436.73 (£397.04 if Magistrates). Grand total of fees for this two day hearing would be £982.64 (£893.34 if Magistrates).

IF the bundle is more than 350 pages, a bundle uplift of £159.30 will be payable, but this is unlikely for a 2 day hearing and given the guidance on what documents QLRs should be sent (not much). In common with legal aid work, no fee is payable for watching police video interviews, which can take several hours. In cases involving large volumes of disclosure (typically if there are phone downloads) an additional bundle uplift might be payable (based on page count of over 1400) but this is capped at a one of payment of £318.60. Again, this is unlikely to apply to a 2 day fact finding hearing.

If the hearing is cancelled for any reason, a fee is still payable BUT here its half of one day’s fee i.e £272.95 (£248.15 if mags). So if you’ve paid for a hotel and train ticket already you are going to be a bit stuffed. Soz.

Best case scenario

Let’s assume your risk tolerant approach to this brief has paid off, and both hearings go ahead. The overall fees less the overall travel / accommodation outlay will bring us to a total net fee of £655.14 or £551.63 (Mags). For 3 days work, 3 nights away from home and many hours of travel at antisocial hours (realistically if you are in court locally the day before the hearing you are going to take your toothbrush to court with you and hop straight on the train once you are done, arriving around 9pm. 655 quid is better than a slap in the face with a wet fish I suppose, but this figure is NOT the amount of actual profit resulting from this work. Oh no.

Any barrister who is acting as a QLR will also have ongoing business costs / overheads which need to be met out of any fees earnt, such as:

  • insurance (min £260 pa),
  • practising certificate (say up to £1,000),
  • core text book (approx £600),
  • data protection certification (approx £300),
  • annual training via conferences and courses (cost varies),
  • subscriptions,
  • they have to pay for hardware and software every few years,
  • increasingly, costs of supervision.

Even just those things above I’ve put a rough price tag on above come to over £2,000 a year.

In addition, to even be eligible to act as a QLR a barrister has to undertake an arduous vulnerable witness advocacy course. Fortunately that course if free, because it’s provided by the FLBA for its members, but it does still have a cost: together with the preparation it takes about 2 full days of their time when a lawyer can’t be earning.

A barrister also has to pay rent to their chambers. Different barristers chambers have different fee structures but let’s say 15% of income (many will pay more).

By the time you’ve factored in a notional daily figure for the above overheads, your net profit is down to about £520.91 (I’ll spare you the fine detail, I’m not a complete sadist) or £440.89 for magistrates.

I reckon this case is going to involve about 34 hours of your professional time:

6 hours prep (conservative), 1 hour con, 1 hr PTR hearing and 6 hrs each day of the 2 day FF, plus 14 hours on the train (when you can’t realistically do other work due to GDPR). That’s 34 hours.

Converting the figures into a very approximate hourly rate this amounts to £15.32 p/h (12.97 if mags). Minimum wage is £10.42 p/h.

I’ve not costed in the cost of qualifying, subsistence or those other overheads above that don’t have a specific cost estimate, so these figures are likely to make the fee look more generous than they are.

Finally, all these figures are before deduction of Income Tax and National Insurance. Oh, and the self employed bar don’t get sick pay or holiday pay etc.

I’ve focused on barristers partly because the economic issues are ones I understand best, and partly because at present the only qualifying course available for lawyers is run by the FLBA for barristers, meaning that the pool of potential and actual QLRs is predominantly made up of barristers. Solicitors have a different corporate / employment structure, but those individuals / firms will also have similar sorts of overheads. I’d be surprised if this work is any more attractive to solicitors than it is to barristers.

There are lots of variables and guesstimates in the above, but I’ve tried to make reasonable assumptions based on experience. What I think is pretty clear is that this is not a hugely attractive gig (even ignoring the subject matter and particular challenges of the QLR task). Those of us who work in this field don’t do it for the money, but we do have to pay our rent and feed our children and we can’t work at a loss. This is not a complaint about my income by the way, but the reality is that the prohibition is mandatory, and its functioning depends upon a funding system that will incentivise lawyers to make themselves available for this work in large numbers. The cost in human and efficiency terms of not doing so will be huge. The cab rank rule doesn’t apply to this work (which means we don’t have to agree to do it), it’s high risk (professionally, ethically and financially), and even if hearings go ahead as planned, and even if you are much more junior than moi, it’s not very well paid. It’s not a fee which properly reflects the skill and responsibility the job demands.

It is well known that there are not enough lawyers signed up to be QLRs. This means that courts are increasingly going to have to search further afield in order to find a willing advocate. And yet the further afield they go the more unattractive the ‘opportunity’ is, precisely because of the distance. Placing the cost burden and risk of travel and accommodation on the lawyers is a really big disincentive which will make it even harder for courts to find people to do the job. More than that, it’s a slap in the face to suggest we should do this work without the travel expenses that we would normally be paid by the Legal Aid Agency if we were representing a publicly funded client.

This may be less of a problem in courts near big cities with largish legal communities (maybe), but in rural courts or locations which are not well served by a local bar or good transport links this could be a real disaster – we could see the emergence of QLR deserts. It may also be less of a problem in public law cases or cases at cases heard by more senior judges (where fees are a bit higher), but the volume of private law fact finding and welfare hearings being dealt with by lower tiers of judiciary and where the prohibition will apply is going to be huge.

It boils down to this: if there is no QLR the hearing can’t go ahead. That fixture is vacated or adjourned. Another slot and another judge has to be found. More pressure is placed on the system, more delay for the families. The whole machine grinds to a halt. And it could grind to a halt in quite a few cases if my pessimism is not misplaced. Which, sadly, it rarely is. I want the scheme to work but my hobbit sword is glowing bright blue.

For those who want to check for themselves, here is the fees order, and here is the statutory guidance.