Evidence submitted by Child Concern (LAR
150)
Please find attached the response of Child Concern.
We are a registered charity whose objectives are to work further
and improve the knowledge and practice of all persons involved
and interested in the law and practice relating to children. The
present membership is about four hundred made up of lawyers, social
workers, Cafcass, expert witnesses and members of the judiciary.
Our patron is HHJ Iain Hamilton.
I am the Chairman of Child Concern and a Children
Panel solicitor. The views contained in this response are those
of our executive committee which contains members of all the professions
referred to above.
Legal Aid: A Sustainable
Future
THE RESPONSE OF CHILD CONCERN
1. ABOUT CHILD
CONCERN
Child Concern is a registered charity whose
objectives are to work to further and improve the knowledge and
practice of all persons involved and interested in the law and
practice relating to children and children's issues. Based in
the Northwest, Child Concern is an association with multi-disciplinary
membership from a wide geographical area. The present membership
of around 400 includes solicitor, barristers, social workers,
officers of CAFCASS, magistrates, police officers, psychologists,
psychiatrists, paediatricians and other health professionals and
members of the judiciary. His Honour Judge Iain Hamilton is our
patron.
Child Concern provides its members with a forum
for the exchange of information, opinion and ideas and the opportunities
shared with and to learn from the experience and knowledge of
members of other professionals dealing with the same issues in
relation to children and their families.
Child Concern is a non profit making charity
providing multi-disciplinary training of the highest standard
on issues of current interest for many different professionals
and agencies working with children and their families within the
forensic context of both public and private law family proceedings.
The response to the legal aid proposals are
those of the elected executive committee. Membership of that committee
includes social workers, consultant adult and child psychologists,
consultant adult psychiatrists, members of the bar and solicitors
from both private practice and others employed by local authorities.
2. INTRODUCTION
Before we comment upon the proposals we think
it is worth just reflecting on the state of the current family
justice system. Of course, the family justice system deals with
the most vulnerable members of our society. In particular, the
system seeks to protect and promote the welfare of all those children
who through no fault of their own become subjects of applications
before the courts. We note what the current education secretary
Alan Johnson said on 10 October 2006. He said "Children in
care already face a tougher life than any child should have to.
As a proxy parent, the state must raise its ambitions for these
children, just as a good parent would, and transform their life
chances through better emotional, practical and financial support
at home and in the classroom. We can't immediately eradicate and
solve all the problems children and young people in care face,
but we can remove significant obstacles and ensure that our care
system does what it says on the tin."
We believe that there are current very significant
pressures on the family justice system and if these issues are
not tackled in the immediate future the structure is in danger
of collapse. In particular we would point to:
(a) Increasing pressures on social services
departments. Many departments are finding it difficult both to
recruit and then retain staff. In some local areas, local authorities
have had to go as far a field as Canada and Africa to recruit
social workers.
(b) An ever increasing pressure on CAFCASS.
In the Greater Manchester area waiting lists are still a common
feature. We also note that over the years the requisite experience
required to become a children's guardian has been reduced and
in some circumstances guardians have been appointed with extremely
limited experience of child protection. Our members who are guardians
are currently dealing with the proposals under "Every Day
Matters" and self employed guardians are concerned about
their future if fixed fees for how they are to be paid are introduced.
(c) An increasing volume of public law proceedings
with many of those cases involving a great deal of complexity.
All professionals have been dealing with relatively new initiatives
involving the protocol, the new law on adoption and the child
care review.
(d) A significant reduction in the number
of firms and solicitors undertaking family work. We note that
since 2001, firms doing legal aid have reduced from 4,593 to 2,784.
Within Manchester alone, five practices have ceased doing publicly
funded work in recent years. Consequently, this has made it increasingly
difficult for parents to find competent representation.
(e) There has been little increase in the
number of experts undertaking this work. Consequently, those experts
who are prepared to work within this field are almost always full
to capacity and are finding it increasingly difficult to report
within protocol time limits.
3. THE PROPOSALS
Following the report of Lord Carter, we understand
that the legal services commission wish to introduce a fixed fee
payment per certificate for the solicitors undertaking the work.
It is claimed that this exercise will be cost neutral. The Legal
Services Commission accepts that in the vast majority of cases
there will be no consideration as to the complexity of each case.
It is only if the case is so complicated that it requires work
of four times the level of the fixed fee will the solicitor be
paid for all the work that he or she has undertaken.
Furthermore, there will be a fixed advocacy
fee for solicitor advocates. Unlike the bar, the fee for the solicitor
will not be graduated and there will be no scope for factors pertinent
to that case to be taken into account.
The Legal Services Commission recognise that
there will be winners and losers, ie they take a "swings
and roundabouts" approach. They recognise that on some cases
solicitors will be paid more than the work that they have undertaken
and on others less. Overall the Legal Services Commission feel
that the payments will balance themselves out.
4. OUR CONCERNS
4.1 We are aware that the consultation process
took place largely over the summer holiday period and we are not
aware of any particular consultation that has taken place in the
Greater Manchester area by Lord Carter or his team. Recently,
there has been some consultation with solicitor's practices but
we wonder whether any consultation has taken place with other
professionals who are going to be significantly affected should
these proposals come into force.
4.2 We believe that the proposals show
a total misunderstanding of the work that is undertaken within
family proceedings. For instance, the proposals do not appear
to take into account important details of public law proceedings
such as interim hearings, finding of fact hearings (which can
take many days of court time), secure accommodation, discharge
of care orders, contact to children in care applications and adoption.
4.3 Despite the claim that these proposals
are cost neutral many local firms of solicitors believe that their
fee income will be cut by up to 50%. This will inevitably lead
to a significant number of firms no longer prepared to undertake
public funding work. We understand that some firms around the
country have already indicated that they will close their family
department if these proposals take effect.
4.4 It will be increasingly impossible
for a solicitor to act as an advocate. Each solicitor who is a
member of the law society's children panel has already given an
undertaking that they will not "normally delegate the preparation,
supervision, conduct or presentation of the case, but will deal
with it personally." That undertaking will be impossible
to adhere to under the new proposals. By way of an example, we
looked at the advocacy fee for a five day case (all cases in the
Manchester Care Centre are listed for five day final hearings).
If one conservatively allowed for five hours preparation for that
hearing (to include pre hearing preparation and preparation during
the hearing) and then six hours attendance per day at court (ie
10 am to 4 pm) this equates to in total 35 hours work. Under the
proposal this would equate to £14 per hour. It is therefore
obvious that solicitors would have to instruct counsel and the
court would lose the benefit of many years experience of those
children panel solicitors who have kept to their undertaking and
have that unique and privileged position of representing the children.
4.5 There are clear ramifications for CAFCASS.
With the experience required to be a guardian having been reduced
it is important that those inexperienced guardians have the benefit
of being able to instruct experienced solicitors to represent
the children. Equally, on complex cases all guardians require
the most able solicitor to represent the children.
4.6 It is our view that these proposals
will also lead to greater numbers of unrepresented parties which
in turn will lead to greater court time being spent on the cases,
more adjournments and consequential delay.
4.7 When courts are unable to appoint guardians
they rely upon experienced children panel solicitors to represent
the children. These proposals will make such reliance a thing
of the past.
5. CONCLUSIONS
5.1 We wholly endorse the comments of the
Education Secretary referred to above. It is surely right that
any civilised society looks after the most vulnerable adults and
children. It is a mark of such a society that those professionals
who devote themselves to assisting those adults and children are
remunerated in a fair and reasonable way. We are not talking about
"fat cats".
5.2 We have noted the response of Greater
Manchester solicitors and that of the Greater Manchester Family
Justice Council who have submitted representations. We endorse
everything that those representations have made. There surely
comes a time when the government and the Legal Services Commission
must take a step back and consider that all these people can not
be wrong. Is a "swings and roundabouts" model the best
way for representing vulnerable children and adults? We think
not.
5.3 If these proposals for the remuneration
of solicitors come into force then we forecast that the current
system will haemorrhage. All that will be left will be under qualified
and inexperienced representatives.
5.4 These proposals are not only bad for
the legal profession but they are bad for society and we would
urge Legal Services Commission to reflect further and consequently
abandon these proposals.
October 2006
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