The new FAS is rushing fast towards us. The clerks have been on training. There has been a flurry of new SIP-like forms, and we will soon have to start working out quite what the new scheme will mean on a day to day basis. Yes, we should all have got to grips with this some time ago, but when rushing around like a headless chicken is an occupational hazard, some things have to take a back seat. Some of us will be getting a nasty shock.
I have a rough idea of what the scheme entails, because I was involved through the FLBA in the process that led to its creation last year. But now its down to the nitty gritty. This is not a systematic summary of the changes between the GFS and the FAS, but here's a few gems I spotted on a first whizz through the printed material made available at the training event*:
- Cases under certificates issued before the start date in Oct 2010 will be under the old scheme. So once again we will be operating under a tandem regime. This means two sets of forms in your handbags ladies. It means that the failure to provide a copy of the certificate when counsel is briefed will create practical difficulties as we will not know which form to use from day to day. Elsewhere we are told 'if no AAF (Advocates Attendance Form) is submitted when one is required Hearing Unit 1 only will be paid. That would be NOT GOOD.
- In emergency matters issued on the day of the hearing the clock runs from the time of issue. That should be an interesting one to operate. What happens if the application is not issued until after the hearing? Who will verify the time of issue?
- a 'significant harm' bolt on is claimable. There is a(n exhaustive?) list. It includes the easy to identify types of harm: burns, scalds, extensive bruising...It does not include other equally serious but less tangible forms of significant harm such as emotional abuse. Arbitrary?
- Court bundle fee payments are generally only payable once. The document rather glibly suggests counsel should check with instructing solicitors whether the bundle fees have already been claimed. Experience suggests this is unlikely to be easy information to obtain, but it may be that where all the goodies in a case have been claimed (conferences, bundle uplifts etc) and previous counsel is unavailable it will be difficult to obtain alternative counsel prepared to read all the papers afresh for an un-enhanced fee. Unfortunately the greater the pressure on court time, the harder it is to list to counsel's availability so this may well be a real problem.
- The FAS hearing fee includes representation on an appeal against an interim order, any application to court of 1st instance for permission to appeal, and any advice on the merits of an appeal against the final order. What? This means that where a parent wishes to appeal the making of an interim care order their advocate must advise, draft and appear at any appeal FOR FREE. What happens where an urgent appeal needs to be made and counsel who dealt with the ICO cannot appear due to other commitments? My last appeal against an ICO was in precisely such circumstances - I was drafted in at about 30 minutes notice to make an appeal in the county court against an order made in the mags that morning. Would I do it for free? From a business perspective how could I?
- Finding of Fact hearings are now treated as final hearings. Good.
- An uplift where an independent expert witness is xx'ed (not CAFCASS or social worker)
- representation of children via a 9.5 Guardian in private law is excluded from the scheme and paid on an hourly rate
- Can no longer claim a conference fee for conference at court on the day of the hearing. Presumably one could be claimed if one met client at chambers for a conference and then walked over to court?
Oh, come back Graduated Fee! All is forgiven...
*task number 2 is to verify that what this document says is an accurate representation of the actual SIs that create the regime.