Evidence submitted by NAGALRO (The Professional
Association for Family Court Advisers and Independent Social Work
Practitioners and Consultants) (LAR 157)
1. INFORMATION
ABOUT NAGALRO
1.1 NAGALRO is the national professional
association for Children's Guardians, Family Court Advisers, independent
social workers and social welfare consultants. Formed in 1990,
NAGALRO is a membership organisation whose 600 members work most
frequently in the legal arena of cases involving children and
families. NAGALRO members are amongst the most experienced social
work practitioners in family welfare, family court practice, child
protection and safeguarding. A number of our members are independent
social workers who provide expert assessments in family cases
for courts, and also for local authorities.
1.2 In addition we have some 300 associate
members, many of whom are solicitors on the Children Panel.
1.3 NAGALRO aims to promote quality standards
in the work of Children's Guardians and independent social work
with children and families, to provide guidance on good practice,
and to provide support and advice to individual members. NAGALRO
contributes to policy and practice developments in the Guardian
and Family Court service, through communication, policy responses
and interdisciplinary work with organisations in the family justice
field eg Cafcass, children's solicitors and other professionals
working with children.
1.4 NAGALRO organises two annual, national,
interdisciplinary conferences and provides training for multi-professional
audiences in venues around the country. NAGALRO also produces
a quarterly journal that publishes articles on socio-legal issues.
1.5 NAGALRO submitted evidence to the DCA
Select Committee on CAFCASS in 2003, and the DCA/DfES Care Proceedings
Review in 2005.
1.6 This submission focuses on the implications
of the LSC consultation on changes in Legal Aid for work in the
family courts, and in particular the effect on the representation
of children. It reflects the views of NAGALRO Council and of members'
representations made to the Council.
2. NAGALRO'S
INTEREST IN
LEGAL AID
WORK IN
FAMILY PROCEEDINGS
2.1 Our full members are all social work
professionals. When acting as Children's Guardians they safeguard
the interests of children in tandem with legally aided children's
solicitors. The parents of the children our members safeguard
in public law family cases are entitled to free legal aid. Care
and adoption proceedings are concerned with some of the most serious
issues that any family and court has to face: in care proceedings—the
removal of children from their families, and in adoption proceedings—the
permanent legal severance of their family ties. Many of the families
involved in these cases are disadvantaged by virtue of poverty,
physical disability, learning disability, mental health problems,
ethnicity, uncertain immigration status, substance misuse and
so on. The children who are the subjects of public law proceedings
are believed to have experienced serious neglect and abuse of
all kinds—physical, sexual and/or emotional, including having
witnessed domestic violence.
2.2 The tandem model of representation for
children and young people is recognised as integral to ensuring
future progress and safeguarding, because it provides both legal
and welfare representation by experienced professionals in their
respective fields. This combination of expertise is necessary
to address the complex realities of the lives of children who
have been subject to probable significant harm within their own
families, and who then face the risks associated with entering
the public care system, whose outcomes for children are notoriously
poor. It should offer proactive and vigorous safeguarding and
advocacy to advance children's welfare.
2.3 There have been significant problems
in the system of provision of Children's Guardians and Family
Court Advisors to children since CAFCASS was set up in 2001. The
problems have included serious delays in the allocation of suitably
qualified practitioners to safeguard the interests of children
in proceedings in the family courts.
3. CARE PROCEEDINGS—LSC
PROPOSED GRADUATED
FEE SCHEME
3.1 NAGALRO is aware that legal firms who
undertake the representation of children and family members in
family proceedings, especially within the public law arena, are
strongly opposed to the LSC proposals because of the damage they
will do to the ability of these firms to provide an appropriate
level of service to legally aided clients. It is our understanding
that there is a great likelihood that many firms will cease to
undertake this work, and that others will be forced to use less
experienced staff. We understand that many firms expect that they
will lose 40-50% of their income if they continue in family work.
3.2 NAGALRO is not in a position to comment
on the details of the proposed remuneration scheme for legal practitioners,
although we would make the following points about the suitability
of graduated fees for public law cases.
3.3 A substantial proportion of Children's
Guardians historically have been self-employed contractors (SECs).
The issue of their remuneration in family cases has been a matter
of serious dispute between SECs and CAFCASS twice since 2001.
Each time CAFCASS has sought to impose fixed or graduated fees
for work that has many similarities with that which family solicitors
undertake in public law cases. NAGALRO is therefore familiar with
the arguments and issues around graduated fees.
3.4 It is NAGALRO's considered conclusion,
having considered the issue twice in a thorough manner, that a
graduated fee structure is inappropriate for the needs of family
cases in public law, especially Section 31 applications, but also
others. Joan Hunt et al[91]
[92]
looked at factors that had a statistically significant association
with the number of professional hours spent on a case. One of
the most striking features of this research was the sheer number
and diversity of factors which proved to have a statistically
significant association with higher or lower professional hours
used, and which caused the researchers to conclude that variation
in case hours in public law is a highly complex phenomenon. These
factors equally affect the hours spent by family solicitors and
thus their costs in representing children and other parties. This
research information should not be ignored in coming to an evidenced
decision on these matters.
3.5 The range of factors that Joan Hunt
and her colleagues identified, demonstrate that a fixed/graduated
fee scheme of remuneration is simply not appropriate for these
family cases. For practitioners to tailor their work to fit the
fee, irrespective of the interests of the child, would not be
consistent with the welfare of the child which is a requirement
of the legislation. "Swings and roundabouts" arguments
are not justifiable where practitioners usually only carry a limited
number of cases, and therefore variations in case complexity cannot
be evened out by spreading the risk over a volume of cases. The
risk falls exclusively on the practitioner who is not able to
control a large proportion of their costs except by short-changing
their clients, which is neither professionally and ethically acceptable.
3.6 Payment at hourly rates is the fairest
method for work that varies so greatly and where external factors
cause the variation ie factors outside of the control of the practitioner.
Payment for the actual work done best serves the interests of
vulnerable children, and ensures those in the most complex situations
get the high level of service they require to properly safeguard
their interests at such a crucial point in their lives. Unlike
in other areas of legal practice, in family law the decisions
made stay with children for the rest of their lives. There is
no second chance.
4. IMPACT OF
THE PROPOSALS
4.1 We have the gravest concerns about the
likely impact of these proposals on the future of children's representation
in family law proceedings. These cases are pivotal to children's
future safety, wellbeing, personal development and family identity.
We are just as concerned about the impact on the representation
of parents, where Children Panel solicitors play a significant
role in supporting parents to engage in proceedings in a realistic
way.
4.2 Changes in availability of children's
legal representation must be considered in the light of developments
in CAFCASS that are restricting and fragmenting the welfare representation
of children. Delays in allocation of Children's Guardians and
Family Court Advisers are still prevalent in many parts of the
country, although waiting lists may no longer show the whole picture.
It is particularly important in public law that high quality,
experienced children's solicitors are available to represent children
in the absence of a Children's Guardian. There is a continuing
exodus of experienced practitioners from CAFCASS, which has reduced
the length of experience required at the point of recruitment.
Children in proceedings should not be denied the best quality
legal representation available if their access to welfare representation
is already compromised.
4.3 The combination of the LSC legal aid
proposals with the reduction in CAFCASS' service to children is
likely to mean that many children will have not only junior and
inexperienced legal representation but also inexperienced guardians.
Children require robust advocacy in relation to the significant
aspects of their life which the family Courts have to consider.
They require this attention to the care they receive from Social
Services Departments, to contact arrangements with family members,
and to their parents' ability to change and offer safe care. It
is highly likely that if representation is constrained in the
ways proposed, then more children will die and be seriously injured
because they are not adequately protected. More children will
suffer the consequences of unacceptably poor decisions being made,
whether returning home when it is not appropriate or remaining
in care when they could be cared for within their own families.
4.4 CAFCASS has been subject to budget cuts
in its front line services for the last two years. In addition
as a matter of policy CAFCASS plans to reduce the level of service
to children in public law by over 40%.[93]
4.5 Many Social Service Departments are
struggling with issues of staff recruitment, quality and retention.
Concerns about inadequacies in the care system have recently been
once again the focus of government attention.
4.6 Children are the most vulnerable people
in proceedings concerning them. Their age and stage of development
often mean they are unable to participate fully in proceedings.
One of the most important roles for the "tandem model"
of legal practitioner and Children's Guardian is to work together
to assist in enabling children to participate within the court
process.
4.7 The proposed Care Proceedings Review
has suggested that parents would have access to legal advice and
representation in some form in pre-proceedings meetings designed
to engage parents in addressing concerns about the wellbeing of
their children and so to prevent cases ever reaching the courts.
There is no parallel suggestion that children should have independent
legal and welfare representation in their own right at this early
stage, even though there may be conflicts of interests between
them, their parents and the plans being made by the Local Authority.
This gap should be rectified as it would leave children unrepresented
when important decisions are made about their future.
4.8 The harm that children may have suffered
impairs their physical, educational, social and emotional development.
Delay in reaching a sustainable solution and inadequate representation
can have life-long consequences, and can serve to aggravate the
damage that led to the proceedings in the first place.
4.9 In these circumstances it is imperative
that experienced legal practitioners are retained and not driven
away by inadequate remuneration. The strongest efforts need to
be made to ensure their retention within the family justice system
so that their skills and expertise are available to the vulnerable,
distressed and disadvantaged children and families who are so
often the subject of family court proceedings. In rural areas
the number of Children Panel solicitors is already limited, so
that any reduction will make adequate representation for children
and families very hard to obtain.
5. CONCLUSIONS
5.1 The family justice system requires properly
joined-up thinking. All the government departments that have responsibility
for its constituent parts need to be cognisant of the impact that
their budget plans have on the whole. This does not appear to
be the case at the moment in thinking about family proceedings.
5.2 We would like to draw to the Select
Committee's attention to what NAGALRO believes are extremely serious
cumulative consequences of the Carter proposals when put together
with the current direction of CAFCASS policy for the availability
of a high quality social welfare service for children subject
to family proceedings.
5.3 Children's rights, and those of parents,
will be set back to a degree completely unacceptable in a society
that values fairness if these changes are put into force. There
are significant human rights issues here relating to the rights
of children and families in family proceedings to family life
and the right to a fair trial.
5.4 What has been a good quality service
is in real danger of being dismantled as an apparently unforeseen
consequence of these proposals. The overall cost of the family
law budget is comparatively small in the whole legal aid budget,
let alone when set in the context of other government spending.
In NAGALRO's view the costs and risks in terms of justice and
rights are unacceptably high. The personal costs of damage to
individual children, and the costs to society must also be properly
addressed and brought into the equation.
5.5 We recommend that:
— the LSC proposals in respect of family
proceedings are withdrawn;
— the importance of the tandem model
of expert legal and welfare representation in Public Law is re-affirmed
as the best way to provide the necessary representation for children
within proceedings;
— recruitment and retention of sufficient
high calibre Children Panel solicitors are given very high priority;
— the reduction and fragmentation in
the work of Children's Guardians and Family Court Advisers under
the management of CAFCASS and its adverse impact on the service
to children is noted, and recommendations be made to reverse this
process;
— careful, multi-disciplinary planning
takes place across the family justice system, to achieve the best
quality genuinely "joined-up' service possible for children
and families.
Alison Paddle
Chair
October 2006
91 Factors affecting the time guardians spend on cases,
Summary report prepared for CAFCASS (2002), J Hunt, Oxford Centre
for Family Law and Policy. Back
92
Capturing Guardian Practice Prior to CAFCASS (2003), J Hunt, A
Head, N Drucker, Centre for Family Law Policy, Oxford University.
Download from www.apsoc.ox.ac.uk/Publications-DepartmentPapers.html Back
93
Every Day Matters, para 42, CAFCASS. Back
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