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:
(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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