Select Committee on Constitutional Affairs Written Evidence


Evidence submitted by the Greater Manchester Law Practitioners (LAR 88)

INTRODUCTION

  The Family Justice System deals with those members of our society who are very often the least fortunate and the most vulnerable. In many instances this is through no fault of their own and must be so in the case of children.

  There should be access to family practitioners for these very often desperate people who find themselves involved or in the need of the Family Justice System.

  It is of great concern that practices are giving up all legally aided family work and that Children Panel membership has fallen very considerably. It is inevitable due to the existing proposals that this trend will continue. In Manchester City at least five practices have ceased to conduct publicly funded work in the last 12 months.

  All DCA/DFES Commission research shows that the drivers of delay and cost lie elsewhere in the Family Justice System and not with solicitors.

  All such research recognises the huge importance of the role of specialist family lawyers in care proceedings. Hence the introduction of the Children Panel and the enhancement on basic fees in recognition of such accreditation.

  In contrast to criminal legal aid civil legal aid spending fell by 24% between 1977 and 2004-05. The DCA states "the growth in criminal spending has meant we have had to reduce spending on civil, particularly on legal help and family legal aid, which is undesirable for society as a whole."

  The LSC assert that the funding of work focused on the protection of vulnerable children is one, if not their major priority. These proposals are completely at odds with this stated objective.

GENERAL OBSERVATIONS

  It is clear that the overwhelming majority of time spent by Lord Carter and his team was on criminal legal aid. It was only in the latter months of the review that any thought appears to have been given to reforming the payment for family legal aid. The results are quite staggering in terms of the major overhauls proposed. They show a clear lack of understanding of the nature of family work and the fundamental ways in which family practitioners deliver their services.

  Consultation by Lord Carter and his team appears to have been extremely limited. We are not aware of any practice in the Greater Manchester area that was consulted by Lord Carter or his team. Nor does it appear any consultation took place in other major care centres in Liverpool, Birmingham or Leeds.

  This is somewhat remarkable in that the Manchester Care Centre is the largest Care Centre in the country outside of the Royal Courts of Justice.

  In fact it would appear that there has been very little consultation with family practitioners. Of the top 50 providers of family certificated work in the country only two appear to have been consulted. Both of these are London firms.

SPECIFIC CONCERNS

  1.  Business owning practitioners estimate a reduction in fee income of between 30-50%. The reduction is even more stark in private law cases.

  2.  The current rates of pay in family work are at a level which makes practice extremely difficult to manage. There has been little or no increase in effective terms over the past five years.

  3.  The low fixed fee rates for example for advocacy do not adequately reflect the skills of panel members. The proposals remove the automatic 15% enhancement.

  4.  No account is taken for example of causation or split hearings, which of themselves may be of many days duration.

  5.  No account is taken of the time that a contested interim hearing may take.

  6.  No account has been taken of Advocates' Meetings, or Professionals' Meetings.

  7.  Into what category do the following cases fall:

    (i)  Adoption.

    (ii)  Cases involving the Official Solicitor.

    (iii)  Secure Accommodation applications.

    (iv)  Discharge of Care Orders.

    (v)  Contact to children in care.

  All consultation documentation remains silent on these issues.

  8.  We are concerned that it is proposed that there be no extra payments for dealing with for example Placement Orders issued within S31 Proceedings. This assumes that the proceedings will be dealt with together which in practice is not the case.

  9.  The removal of the 15% uplift for panel membership pays no heed to the expertise required for attaining and maintaining such membership. It will do nothing to encourage or attract young people to aim for the quality and high standards that Children Panel membership currently represents. It ignores the undertaking that all panel members give to the Law Society to conduct the case throughout without reference to Counsel which must be a saving for the Legal Services Commission.

  10.  Trainee solicitors are hardly likely to want and/or feel encouraged to enter into the practice of family law with such limited future prospects.

  11.  We are very concerned with regard to the proposals for the Stage 1 and Stage 2 payments. We believe that no regard has been had to the vulnerable and disadvantaged people who will be involved in these stages. It is naive to believe that parents involved in public law proceedings will more often than not seek legal advice at an early stage.

    We do not believe that this approach will fundamentally alter the manner in which cases will be required to be conducted. We are concerned that the adoption of such an approach will lead to the breach of many fundamental human rights, particularly those of children.

  12.  We are concerned that there appears to have been little or no credence given to the fact that the geographic area in which we practice are areas which are as diverse as any in the country in terms of language and ethnicity. What appears to be a blanket acceptance that London practitioners should receive higher rates of pay in our view does not reflect the reality of the areas in which we practice. The removal of traveling time is another reflection of the lack of understanding of the size of the area in which we undertake work.

  13.  The Carter Review suggests regard should be had to the LSC budget but should maintain an adequate supplier base. The proposals put forward by the LSC do not reflect the maintenance of a supplier base that can financially be maintained and sustained. We believe that the Carter/LSC/DCA proposals are at odds with the Preferred Supplier Scheme.

  14.  We are concerned as to the lack of general knowledge as to the following:

    (i)  The data used by the Legal Services Commission and over what period.

    (ii)  Whether or not there has been any inadvertent double counting of Legal Help, FPC bills and County Court bills.

    (iii)  The non inclusion of Counsel's fees in calculating the overall cost of a case.

THE IMPACT OF FIXED FEES GENERALLY

  We are very concerned that the Consultation Paper does not make it clear as to how and when claims for payment will be made.

  Under the present system most practices rely heavily upon payments on account. We are not aware as to whether there has been an in-depth trial as to how the actual payment system will work in practice. In turn therefore we do not believe that anybody has looked at what the actual effect will be upon the day to day management of a practice. All practices will be committed to fixed or increasing commitments at this time. The impact of costs and income could therefore be potentially disastrous and lead to an even greater number of persons no longer wishing to supply the service.

  If it is intended that the proposals are "cost neutral" then why would it not be possible for the LSC to make monthly payments based upon the previous years "take" from the fund with a balancing exercise taking place at the end of the year.

  We do not agree that there should be differentiation in the payment of fees to different parties.

  We do not agree with the proposition that solicitors should be paid less for dealing with a final hearing than it is proposed a barrister should be paid. This is particularly so where the solicitor is a member of the Children Panel. There is no accreditation for members of the Bar to undertake this work. In our view there should be a level playing field for both professions. Why would it not therefore be possible to have a graduated fee scheme for solicitors the same as for the Bar. In this way the same "escape" clauses will apply and if they are good enough for the Bar why are they not good enough for solicitors?

  We are of the opinion that the greater use of unqualified staff demonstrates a distinct lack of understanding of the general nature of the work undertaken and will almost inevitably lead to a poor quality of standard of work.

  We do not understand why there is a need to specify that 30% uplift will be paid for advocates with Higher Rights of Audience with conduct of a High Court case. Such Rights of Audience are generally not necessary in family law cases and as such the uplift should be payable to any solicitor advocate who undertakes a hearing before the High Court. It would be more appropriate to maintain an uplift for Children Panel membership.

  We are concerned that it is proposed that there should be no extra payments for dealing with Placement Orders within S31 Proceedings. This assumes that these proceedings will be dealt with together which in practice is not the case.

  The impact of the proposals on private law cases is potentially dramatic. It is clear that there must be a review of the proposed fee structure. We are of the view that cases under R9.5 Family Proceedings Rules 1991 should be an exception and not part of the General Family Help provision.

THE FUTURE

  We are committed legal aid family lawyers and would wish to remain so however, the legal aid system must allow us to offer a high standard of service for fair and reasonable remuneration and there must be access to a high standard of representation for the disadvantaged people whom we represent. We must be able to financially afford to provide access to justice to those people who so desperately require it.

  We believe that there has been an insufficient consultation period and that the general tenor of the Carter Report seems to be that cheap equals efficient.

  We are concerned that there are a number of initiatives currently under consideration, for example Care Proceedings Review, which will affect the way in which family justice is generally undertaken. We do not believe that these initiatives have all been linked up together or that anyone is able to have a complete overview of the effect upon the family justice system generally. Such a course surely is vital to avoid a situation arising whereby people's human rights are breached, particularly children, and whereby there is a danger that people will be unrepresented in proceedings before the family court, leading in turn to a less efficient system and having a major impact upon the ability of the Courts to deliver the justice that is so desperately required in these cases.

  This document has been prepared in consultation with the Greater Manchester Family Law Practitioners named below all of whom endorse this document.
Green & Co

Pluck Andrew

Temperley Taylor

Rowlands

Alfred Newton

KHF

Seddon Thomson

Rhys Vaughan

Otten Penna

Glaisyers

Bromley Hyde & Robinson

Michael Alexander & Co

Latimer Lee

Woodcock & Sons

Andrew Thorne & Co

Gruber Garratt

Maidments

Hill & Co

Butcher & Barlow

AST Hampsons

Heath Sons & Broome

Jones Fitzpatrick

Wolstenholmes

Adams Taylor

M I Banks

Rothwell & Evans





 
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