Wednesday, 8 January 2014

Family Law: Marketing, Supply and Demand, Paid and Unpaid Advice

Yesterday I came across a news item that the Legal Services Consumer Panel were considering whether there should be paid McKenzie Friends in court, and the implied expectation that lay advisers should work for free. I tweeted a slightly facetious comment that such was Marie Antoinette style thinking... 'Let them eat cake'!

When legal aid was withdrawn from family law, the Government estimated that 45,000 case would lose funding. For those people, and the legal profession, the news was devastating. For the legal profession, it came on top of a reduction in workload caused by the stagnation in the housing market and the economic slump. While property sales may be flying in London, in many areas of the country, things remain stagnant. Many firms have closed. Solicitors find themselves unemployed, with mortgages to pay, children to feed, and bills mounting.

Some, inevitably, have joined the ranks of those working as McKenzie Friends. They are joined by law students unable to find employment. Paid McKenzie Friends have been around for a long time. The President of the Family Division of the Courts acknowledged them in his 2010 Practice Guidance.

Myths and Illogical Thinking

There are two myths I would like to dispel. Firstly, that the legal profession as a whole are against non-solicitor advice in court (the Legal Services Consumer Panel is made up of 8 lay people). Second, that there is a diminishing pool of business in family law.

Is this announcement by the Legal Services Consumer Panel about protectionism, or is it committee mentality, of worthy people far removed from the reality of families, who have found a new area to meddle in to support their own, quango like existence.

Their Concerns and Naivity

Dealing with their concerns. Struck off solicitors and shoddy, poor advice, and politically motivated lunatics representing people in court. Those are fair concerns... but there already exists the means to deal with it. Judges have the power to ban people from acting as McKenzie Friends, and are the best placed to reach that conclusion, by observing them in court.

Another concern perhaps relates to the protectionist worry, that McKenzie Friends will take business from solicitors who have spent years studying to qualify as a solicitor. There are two, clearly distinct markets... and markets are shaped by the marketing mix of 'product, price, place and promotion'. Price here, is the key factor. There are a large number of parents who simply cannot afford £200 an hour, and £1,500 a day for a barrister's advocacy in court. Many, however, can afford £25-£40 an hour, which seems the average fee (in my experience) that McKenzie Friends charge. Some may charge more, but these tend to be the McKenzie Friends with years of experience, and experience at all levels of court.

Then there is the issue of reality. Charities have had their funding cut to the bone. The CAB is turning people away. One charity I know has seen its employed staff cut from 24 to 1 full time member of staff. The idea that volunteers can fill the void is simply ridiculous. While phone calls and face to face support meetings in pubs may be held outside of working hours, support in court has to be conducted during the hours of 9 to 5. There are few in a financial position to give up work to support those in need. Like solicitors (unemployed or otherwise), people have mortgages to pay and children to feed. It is a bit rich to expect McKenzie Friends to collect their weekly shopping from food banks. Hence, I tend to view this that this latest debate as one started by the worthy but wholely impractical committee member rather than anyone with common sense.

The Vast, Untapped Market

An article in the Daily Mail today highlights that market, announcing that 32% of separated mothers and  15% of separated fathers wish to cut each other out of their children's lives. This suggests that up to 1 in 10 parents could do with a little legal support! Further statistics on broken contact suggest that between 1million and 4million parents are stopped from seeing their children.

A declining market? Nonsense.... there is a vast, untapped market, and the Legal Services Consumer Panel would be better directing their time, effort and resources at asking the question why these people haven't approached the court. In a previous blog, I dispelled the myth that 90% of parents manage to resolve their differences without the involvement of the court. Aside from being a 9 year old statistic, of those parents, some 40% never reach an agreement. Why do these parents not approach the court?

The Daily Mail article rightly cites the harm caused to children of fatherlessness (we would add harm caused by motherlessness, as some mothers face the same problem). The Government has failed to address this by removing a presumption of shared parenting from the Children and Families Bill. This 'market' is going nowhere, unless there is a range of support, priced accordingly, and properly resourced. Will funding come from Government for either paid or charitable family law support? Be sensible... laughter during the Parliamentary debate on food bank usage and the intention of the Conservatives to cut winter fuel allowance for the elderly in the next Parliament should answer that question. Parliament is just another committee, but on a larger scale.

It isn't just the Legal Services Consumer Panel which has an unrealistic world view. On the other side of the fence are equally naive worthies who feel that courts are barbaric and family separation shouldn't be handled by judges. The fights over children have been going on since the time of Solomon. It's imbedded in human nature, and a good proportion of human beings are possessive, malicious, and self-centered. The Daily Mail indicates up to a third of our species fall into this category, where their possessiveness even outweighs thoughts of their children's welfare. Even if you rename judges as parental facilitators and put flowers in their hair, you will always need someone with the power to tell parents to behave.

Back to that 'untapped market'. The problem isn't that too many people use the courts, but that not enough do! The impact on society, according to research into fatherlessness (there are many studies now) includes  increased teenage pregnancies, increased juvenile crime, increased juvenile mental health problems, increased teenage self harm... to name but a few of the outcomes resulting from contact breakdown.

The Marketing Mix

Looking at that one to four million potential clients for the legal profession, and applying the marketing mix.

Product: have poor outcomes in court dissuaded parents from applying? Are the length of proceedings an issue? Are the adversarial nature of proceedings an obstacle?
Place: 40% of parents have been unable to resolve differences outside of court... the place for them IS court (mediation may help some, but by all means not all... it's a human nature issue!)
Price: many parents are unable to afford solicitors' fees. From solicitors, you currently may find a Rolls Royce or BMW priced product, but some parents can only afford a second hand Ford Anglia, and some must take the equivalent of the bus.
Promotion: here is where bodies that represent solicitors fail abysmally.

I think it fair to say that the legal profession have a poor image... but compare a lawyer to a surgeon. Surgeons are highly paid, and profit from the misery of people. They also perform vital roles which improve the lives of their patients. What you do not see is one surgeon trying to kill the patient, while the other attempts to revive them. The adversarial nature of family law lends itself to criticism.

There should be a rethinking of solicitors' codes of ethics should include a duty on solicitors to promote co-operative parenting and work towards this end. As in the Children Act 1989, child welfare should be paramount. Don't worry... that third of parents will still be about, however they shouldn't be encouraged (and we see too many cases where they are, regardless of whether they receive professional or lay advice, but perhaps the professionals should set the standard?).

There should be far better advertising of how solicitors can help. Consider this... have you heard the following advertisement on television?

'Have you lost contact with your child in the past 5 years? We can help. 
Phone Family Lawyers for You'

Other areas of the legal profession market not only themselves, but the benefits of the services they offer. A factor in the severing of the child parent relationship is a belief that 'you don't stand a chance in court'. With good advice, a sensible, child focused approach, and help through the court's door, there is a strong chance of success. Lower courts may need to be reminded of authorities handed down by the likes of Munby, McFarlane and Parker... but this is something which solicitors can do (as can the paid McKenzie Friend... the case law is on my site).

Solicitors should not be talking among themselves about declining markets, but advertising to the general public that there is greater opportunity to re-establish child contact than ever before. More than this, they should lend themselves to pushing hard for this as a profession. They then may find there are not enough solicitors to meet demand, but that is a problem for another day.

Commercialism can be a good thing... and benefit society as a whole. Perhaps the legal profession need a new year's Resolution - to improve their image, and tap the market. It's all well and good having some advertising on their website, but where is the national television advertising that the personal injury lawyers manage to afford?