Evidence submitted by the Association
of Lawyers for Children (LAR 222)
CONTENTS
1. Introduction
2. The specialist supplier base
3. Quality assurance and the supplier base
4. The Child Care Proceedings Review (CCPR)
5. The Carter Report
6. Legal Services Commission (LCS)
7. The ALC survey
8. The consultation process: building confidence
and trust?
9. Conclusions
1. INTRODUCTION
1.1 The ALC is a national association of
lawyers working primarily in the area of public child care law.
It has over 1200 members, mainly solicitors and family law barristers
who represent children, parents and other adult parties, or local
authorities. Associate members include legal practitioners, students
and academics, Children's Guardians, social workers and other
professionals such as medical experts. Its Executive Committee
members are drawn from a wide range of experienced practitioners
practising in different areas of England and Wales, including
London, Birmingham, Manchester and Leeds, as well as in shire
counties and small rural areas. Several leading members are specialists
who have over 20 years experience in child law, including local
government legal services, and several hold judicial office.
1.2 The Association is not an organisation
representing children's lawyers or arguing for the interests of
lawyers, but an organisation of lawyers representing children.
It exists to promote access to justice for children and young
people within the legal system in England and Wales. Within that
framework, its aim is to develop and improve the practice of lawyers
in meeting the needs of children who become involved in legal
processes by promoting standards of best practice and interdisciplinary
training. The ALC has consistently supported specialist training
and accreditation for all lawyers in this field to ensure best
representation and consistency of approach to these difficult
cases.
1.3 The ALC contributed to the DCA/DfES
Care Proceedings Review in 2005,[114]
and to the Lord Chancellor's Advisory Committee on Judicial Case
Management in Public Law Proceedings that led to the introduction
of the Judicial Case Management Protocol (JCMP) in 2003. It has
made submissions to the House of Commons Select Committee on the
issue of legal aid in 2004 and CAFCASS in 2003.
1.4 These have highlighted numerous pressures
within the family justice system which impact on the work of child
law solicitors and contribute to delay and extra cost, eg:
— the lack of family Judges, family
sitting days and suitable courtrooms;
— the lack of early availability of
Children's Guardians in parts of the country cut backs within
CAFCASS;
— the limited social work and child
protection experience of many new Guardians necessitating greater
intervention and guidance from Panel solicitors.
1.5 This must be set against a background
of other serious financial, structural and human resource reductions,
in particular a significant impact upon the quality of case preparation
by local authorities due to shortage of finance and social workers.
— a deterioration in the quality of
social work practice particularly in key urban areas and inner
city areas;
— frequent changes of social worker,
and the use of agency staff and locum workers from other countries.[115]
It is hardly surprising that it is often only
when pressure is brought to bear by solicitors in Court that children
and families receive services and support.[116]
All these issues have resulted in increased pressures on legal
aid spending, a factor recognised by Lord Carter as particularly
relevant to public law children work.[117]
1.6 The complex multi-dimensional profile
of children and parents subject to statutory intervention is not
well understood by people outside the family justice system. The
social inclusion agenda is more complex and a great deal more
knowledge is available about the functioning of children and their
families. Other crucial factors that have influenced the extent
and complexity of the work include major changes in legislation,
the adoption and the human rights agenda[118]
coupled with the demands of Every Child Matters.
1.7 It is important to recognise that:
— since the abolition of hanging, the
permanent removal of a child from parents is the most serious
step the state can take against the individual.
— the development of child law practice
arose out of several child death Inquiries, including Maria Colwell,
Jasmine Beckford, Tyra Henry: all children known to social services
prior to their death.
— the aim of both domestic and European
legislation in removing children from their parents is, wherever
possible, their eventual return.
2. THE SPECIALIST
SUPPLIER BASE
2.1 Children Panel solicitors are a unique
and limited resource. They are niche suppliers at the heart of
the family justice system; a key part of ensuring proper representation
and effective outcomes. Care cases are unpredictable, fraught,
and require skilful management. The solicitor not only addresses
the needs of their client, but helps them through an emotionally
demanding process. They must be able to work with parents; over
40% of whom have mental health problems; most parenting under
conditions of extreme poverty and deprivation and often living
on the margins of society.[119]
2.2 To provide effective representation,
solicitors develop complex skills, and understand a wide range
of issues; a process developed with experience. Skills and knowledge
must be updated through a common professional development system.
2.3 The skills include:
— advocacy from Family Proceedings
to the High Court;
— a full knowledge of the Children
Act, extensive case law, practice directions, operation of the
Judicial Case Management Protocol;
— understanding and working knowledge
of social work, local authority practice extensive guidance and
regulations covering social care, health, and education;[120]
— management of the case— chairing
professionals' and experts' meetings
an understanding of;
— risk assessment in child protection,
child development issues, parenting;
— basic medical information in paediatrics;
— causation of serious injuries;
— psychiatric, psychological, and personality
issues;
— learning difficulties and cognitive
functioning;
2.4 Those who represent children must also
— have interview skills with children;
— decide on the competency of children
and young people to give instructions;
— help children participate in decision-making
procedures affecting their future.
2.5 Using these skills affects outcomes.
Families engage in the legal process[121];
are helped to understand the system better; their views are heard
and they have influence over decisions. This meets the requirements
of "equality of arms' between state and family, meaning every
option to keep children out of state care is carefully considered.
2.6 Social exclusion, antisocial behaviour,
domestic abuse, the rise in mental health problems, and contact,
are high on the political agenda, requiring the critical contribution
of a specialist body of lawyers equipped to deal with these issues.
3. QUALITY ASSURANCE
AND THE
SUPPLIER BASE
3.1 As the Committee may know, accreditation,
managed through the Law Society Children Panel set up in 1984,
is designed to be a quality assurance benchmark for representation
of all parties in care proceedings. There are 1,569 members of
this Panel, who are required undertake to conduct their own advocacy
when acting for children.
3.2 Paragraph 33 of the Carter report stresses
that "a diverse and sustainable supplier base is essential
for clients of diverse backgrounds to have confidence in their
legal services. " We highlighted the decline in child
law practitioners in our submission to the Select Committee in
2004. The demographics are a stark reminder of the imminent crisis:
— there are only 15 members of the
Panel who are under 30, the majority are over 45.
— Panel membership has dropped from
an earlier high of 2000+.
— Since 2001 the number of solicitors
firms undertaking family legally aided work has dropped from 4,593
to 2,784.
— Leading firms have closed; key firms
have closed their family departments—a point of considerable
concern raised by the judiciary in April 2006.[122].
3.2 The DCA recognises the need to increase
ethnic diversity, but indications are that black and minority
ethnic solicitors are under-represented in areas of high minority
ethnic populations. These proposals are likely to have a disproportionate
effect in such communities.
3.3 The proposals will exacerbate the difficulty
in attracting newly qualified lawyers into the field, leaving
the future of the supplier base fatally undermined. The decision
to include counsels' fees in the standard fee for Private Law
Cases will result in the work by which junior counsel gain their
initial experience in this field increasingly unavailable to them.
3.4 The proposals have already had damaging
effects. Confidence within the sector has slumped. Planning for
the future is impossible in the current climate of uncertainty.
To imagine that the firms left will see this field as one in which
to expand is to misunderstand the reluctance of practices to base
short, medium and long term business decisions on proposals that
no one practising within the field has any confidence in.
4. THE CHILD
CARE PROCEEDINGS
REVIEW (CCPR)
4. Under A Fairer Deal for Legal Aid,
a review of the child care proceedings was intended to be a cross-government,
end-to-end review aimed at ensuring the system's effectiveness
in delivering the Every Child Matters agenda and outcomes
for children now enshrined in the Children Act 2004,[123]
and "to improve the cross- Government delivery of the core
welfare, minimum intervention and minimum delay principles set
out in the Children 1989." A joint DCA/DFES review, the work
was led by the DCA legal aid team, not the policy team, with no
remit to consider any element of the DFES budget. It is a conclusion
that it was an exercise to cut legal costs.
4.2 The management data presented to justify
major system change was drawn from a variety of sources, including
the LSC. Flaws in this data rendered it unreliable as a basis
upon which to take radical decisions. The report highlights the
need for a system of collection of reliable data to inform decision-making.[124]
4.3 Research review commissioned by the
DCA[125]
identified gaps in robust management data in this field, but demonstrated
many strengths in care proceedings under the Children Act, compared
previous legislation. Specialist solicitors were seen as central
to the success.
4.4 The report recognised that reform would
require consideration of other budgets and front-loading of expertise
to assist early resolution of issues; leading to the recommendation
for the development of a Pre Proceedings Protocol (PPP) to accompany
the existing Judicial Case Management Protocol.
4.5 The potential benefits to the overall
system that such an initiative would bring were recognised by
Lord Carter:[126]
The ALC is a member of the Ministerial Board and stakeholder groups.
The scheme is a long way from implementation and impossible to
calculate in terms of impact on costs the work of social services
departments and local authority lawyers, including potential savings.[127]
5. THE CARTER
REPORT
5.1 The principal focus of the work and
consultation was on the criminal justice system and the need to
re-distribute funds to the civil budget; with no separate terms
of reference for work on Family legal aid.
5.2 His emphasis on the need to sustain
quality specialist practice (see para 3.2 above) was endorsed
in May 2006 by Ms Harman, who is now chairing the Ministerial
Advisory Group on the CCPR:
"It is not acceptable that despite more
than a 33% increase in the legal aid budget since 1997, and an
overspending in that budget currently running at £150 million
a year, publicly funded family law is being squeezed... I recognise
the great importance of the high quality legal preparation and
representation that the Family Solicitors and the Family Bar provide...
I will ensure that the attention of the Carter review and my ministerial
colleagues does not wander from the importance of the provision
of a good supply of good Family Solicitors and Barristers."[128]
5.3 Care solicitors do not fit the competitive
world envisaged by paragraph 26 of the report. The work is time
consuming and cannot be delegated. They carry small, heavy caseload
and cannot add work to increase profitability. The public law
client base is not comparable with customers selecting other legal
services. Children's solicitors are often appointed by court.
— Multiple problems leading to failures
of parenting[129],
coupled with research on the socio-economic status of many parents[130]
demonstrate that such cases do not generate return customers.
— There are too few specialist solicitors
within regions to generate competition.
— Parties cannot find representation
and have to travel to them.
— Multiplicity of parties in care cases
mean solicitors often turn work away due to conflict of interest.
Carter model firms tend to be involved in all the cases they can
be.
— "Chambers" would not comply
with professional insurance requirements; parents would be unlikely
to use them.
5.4 The report calls for greater predictability,
certainty and standardisation in cases, but does not offer a model
on how these complex cases can be reduced to a standardised model
of fees. Care cases are dynamic. A case apparently straightforward
at the outset can become hugely complex as historical details
emerge, previously unknown relatives come on the scene, parents
relapse from addictions, and/or undetected abuse is suddenly revealed.
See Appendix 1 for examples.
6. LEGAL SERVICES
COMMISSION (LSC)
6.1 The appendices to the report appear
to undermine the fundamental principles and observations in the
body of the report. They rely on inadequate data leading to inaccurate
assumptions on the basis of which they put forward financial proposals
that are unsustainable; and recommend a staged fixed fee regime,
not a graduated fee scheme as recommended by Carter.
6.2 The figures supplied by the LSC are
derived from a data collation system created for administrative
use. The proposed system is calculated on certificates not cases.
6.3 The data shares the same inherent inadequacies
as that produced for the CCPR. It cannot provide case management
and costing information upon which reasonable decisions can be
based. The LSC is unable to assess the cost of each case, or its
parts.
6.6 Consultation was limited and in broad
terms. Despite the clear steer from Lord Carter there will be
no movement of funds to the family envelope.[131]
6.7 The LSC were ignorant of practice and
procedure. The proposals make no allowance for solicitor advocates.
There is no justification for different payment to a barrister
or solicitor advocate undertaking the same work.
6.8 The ALC has undertaken a survey—Appendix
2, which shows that average costs are higher than the LSC figures
and the proposed scheme will result in substantial losses.
6.9 The uplift in remuneration for members
of the Children Panel is being removed but not replaced by anything
to maintain the necessary expertise. Peer review will not suffice
to address either the crisis or quality assurance.
6.10 The irrationality of a per certificate
basis for standard fees rather than a per case renders the present
calculations completely inadequate. They will have to be re-done
against new figures from the DCA/LSC following a validation exercise
to test their assumptions and the effect of the proposed scheme.
6.11 The fixed fees are inadequate, and
lead to disproportionate payments between solicitors for parties
regardless of work done; leaving some unpaid for work legitimately
done. The crude system does not meet the complexities of these
cases.
6.12 The regime proposed for private law
work is unworkable, and punitive to vulnerable women and children.
Junior counsel will not be able to gain experience in private
law under the proposals.
7. THE ALC SURVEY
7.1 A survey of ALC members conducted is
at Appendix 2.
7.2 Many respondents were over 45 and experienced
women solicitors whose earnings are largely from child care work.
The cases they handled had higher than average fees and they were
likely to make substantial losses.
7.3 ALC member firms have indicated that
there would be a decrease in payments of between 37 and 47%. Most
have already cut their cloth to meet the demands of efficiency,
adaptations to previous changes in public funding, as well as
rising overheads and the failure to increase remuneration to a
reasonable level.
7.4 A high percentage of the members who
responded to the survey said that the fees were unrealistic and
that they would pull out of public law completely.
8. THE CONSULTATION
PROCESS—CONFIDENCE
AND TRUST?
8.1 The proposals came out mid July, without
prior consultation about figures. The ill thought out fee structure
rocked the profession to its core. Despite formal request, there
was no agreement to extend the consultation period; an adherence
to the letter rather than the spirit of the Cabinet Code.
8.2 There was no reassurance through the
process of consultation. The legal aid minister recognised the
proposals needed adjustment but the LSC backtracked on her concessions.
8.3 The LSC have held public meetings and
met practitioners in firms; a process at times patronising and
unhelpful. Practitioners were told:
— if their cases were more expensive
than others they must be inefficient;
— to pass their sensitive work to paralegals;
— eg accept £4,000 for a case
currently chargeable at £19,000;
— to risk receiving £502 for advocacy
for a week long case.
8.4 The LSC/DCA assert that growth in spending
on public law cases is unsustainable. Their figures show that
solicitors' costs per case have increased by just 2.06% pa over
the last two years (in contrast with the fees for both experts
and counsel).
CONCLUSIONS
The proposals for change are unworkable:
1. There is insufficient data to meet the
requirements of reasonable decision making to reach draconian
conclusions which will decimate the child care solicitor base
and prevent the most vulnerable receiving representation.
2. Fixed fees are an entirely inappropriate
method of remunerating this area of work. Current fees are subject
to significant scrutiny by the LSC and court; it is unreasonable
to significantly reduce children's solicitors' income to balance
increases in other areas of the budget.
3. The scheme fails to address the deleterious
effect of reducing the supplier base, before other initiatives
have been implemented and before the reliability of assumptions
and data have been fully challenged, meaning it will be too late
to meet the Carter imperatives of quality and representation
4. They fail to link the proposals with
the rest of the family justice system and the wider constituency
of issues. Thelack of joined up thinking means that they will
undermine nearly all the key proposals beingformulated for the
Pre-Proceedings Protocol; particularly the acute problem of how
the child's interests will be represented
5. The LSC is unreasonable to refuse to
consider the impact of other developments eg the roll out of the
Preferred Supplier system; the publication of the Chief Medical
Officer's report; the effect of the means assessment in criminal
cases.
6. The proposals are unsupported by all:
ADSS, local authority lawyers, CAFCASS, NAGALRO, (the guardians'
professional association) and the judiciary, who envisage lengthy
cases with unrepresented parties.
7. Child care solicitors are dedicated,
not wealthy. Their work goes beyond legal process and adds value
to society, dealing with areas repugnant to the general public.
They ensure that the voices of the children are heard. Parents'
solicitors are often the first professionals perceived by them
as being "on their side". They assist adults face difficulties,
access support, change; even give up children they love.
8. The system is driving practitioners out.
Failure to address this will mean inadequacy of representation
for the most vulnerable at a critical point in their lives and
cause delays and expense.
9. The proposals aim for a more efficient,
streamlined business model serviceprovided by larger, cost effectivefirms.
However, the current uncertainty created by their approachis entirely
inimical to this being achieved—who in this climate would
base future short, medium and long termbusiness plan on publicly
funded family law work? The approach is akin to trying to create
an ice-cream empire byoffering business opportunities in Antarctica.
10. There has been a failure to engage with
the profession in the way envisaged by Carter to produce solutions
that meet the criteria he set and meet public need.
11. The implementation timetable is wholly
unworkable, frankly insulting and will drive away even more. The
most efficient approved suppliers are stating a clear intention
to abandon the work as impossible.
12. Proposals which restrict the availability
of specialist childcare practitioners are unlikely to be compliant
with the requirements of Article 6 of the European Convention
of Human Rights; where proceedings are complex and having to appear
in person against the State would be unfair. Article 6(1) will
compel the State to provide for the assistance of a lawyer as
such assistance is indispensable for an effective access to court[132].
13. Child care solicitors are the last pillar
in the line of child protection. A court can only act upon evidence
before it. A decimatedpopulation of specialist solicitors risks
the destruction of that last pillar, with inevitable consequences.
Caroline Little
Alistair MacDonald
Caroline Little
Liz Goldthorpe
November 2006
APPENDIX 1
Case 1. A "straightforward" case.
Parents misuse alcohol; the child is pre—teen and with significant
attachment to parents. During proceedings the parents maintain
abstinence and the case proceeds to an agreed conclusion that
the child stays at home under local authority supervision. Near
final hearing the parents relapse. The matter in effect has to
be re—heard leading to permanent removal of the child. The
second phase of the court process is more complex, requiring input
of a child psychiatrist and considerations of issues long term
placement (adoption or fostering), contact with parents and family
members and the nature of therapeutic help required by the child.
The removal from the family is contested and takes over a week
of court time. Costs of each party may be substantial. In consultation
the LSC assume such cost levels mean a high court case—in
fact it is heard in FPC.
Case 2. An apparently complex shaking injury
case. Unexplained injury to a child and unknown perpetrator—the
child was in the care of three people within the time frame given
by the experts. Upon receipt of medical evidence which is wholly
agreed, the father admits to his solicitor being responsible for
the injury and appears willing to work with professionals to care
for their child. Other than the injury (described as an aberration)
they appear competent and caring parents. The threshold aspect
is straightforward and uncontested, but the case is adjourned
for a sophisticated risk assessment to consider if is safe for
the baby to remain with both parents. During the final hearing
(listed six months ahead) information comes to light that the
father has seriously injured a previous partner's child. That
child's mother, whose address was unknown to father and professionals,
has just heard of the incident and goes to see the social worker.
The case has to be adjourned for inquiries to be made of police
and social work teams and consideration of mother's knowledge/collusion
with father and her willingness to separate from the father. She
does so, and successfully cares for the baby on her own.
Case 3. A relatively straight case of parental
neglect through substance misuse listed for a final hearing of
five days. The social worker leaves before preparation of the
final care plans and is replaced by an agency social worker who
has just arrived from abroad and although competent, has no knowledge
of the legal process in this country. The legal representative
for the local authority is not a qualified solicitor and has not
prepared the case according to practice directions. The parents
are represented by their criminal solicitor (not a panel member)
who has instructed a barrister more used to appearing in the Crown
Court, and conducts the case as if it were a criminal matter.
The result is that the case takes 12 days of court time—a
factor beyond the control of the court or the child's solicitor.
APPENDIX 2
Survey of ALC Members
REPORT—OCTOBER 2006
1. INTRODUCTION
This survey was carried out during August/September
2006 and an email questionnaire was sent by a contracted company
to 818 ALC members.
The survey aimed to assess ALC members' views
on the Carter proposals and to inform the ALC response to the
consultation on these proposals. Members were asked about their
own and their firm's legally aided public law children work, their
views on the DCA/LSC fee proposals and, in addition, were asked
to provide details of the profit costs of their last six closed
cases. They were then asked to provide costs for these same cases
under the various elements of the new regime.
1.1 Response rate
A total of 122 responses were received. Three
of these were from lawyers working within local government who
were not operating within the proposed regime and were not able
to respond to some sections or to provide the case details sought.
These three responses were therefore deleted, giving an effective
response rate of 15% (119/818). The response rate is likely to
have been seriously affected by the timing of the survey (over
the August and early September holiday period), the lack of time
for effective follow-up procedures to boost the response rate,
and the fact that the survey asked for detailed financial information
at a point when some practitioners would not have fully got to
grips with the financial effects of the proposals.
Unless otherwise indicated, findings are based
on all 119 respondents. Percentages may not add to 100 due to
rounding.
FINDINGS
2.1 Section 1: respondents and their firms
2.1.1 Gender: respondents were overwhelmingly
female: 70% compared with the 30% who were male.
2.1.2 Ethnicity: the 6% who considered themselves
to be a member of a minority ethnic group were mainly based in
London (this applied to six out of the seven of those describing
themselves as members of minority ethnic groups.)
2.1.3 Age: most respondents were aged 45
and over.
2.1.4 Length of qualification: the large
majority of respondents had been qualified for more than 10 years.
2% had been qualified for up to three years
5% had been qualified for between three to five
years
11% had been qualified for between six to 10
years
40% had been qualified for between 11-20 years
42% had been qualified for 21 years or more.
2.1.5 Membership of Resolution: around half
(52%) of the 114 respondents to this question indicated that they
were also members of Resolution.
2.1.6 Practice location: around two thirds
of respondents described their practice location as metropolitan.
34% were based in another metropolitan area
8% were based in a rural area
8% were based in suburban area
19% were based in an urban area.
2.1.7 Partnership status: almost three quarters
(74%) of the 117 respondents to this question stated that they
were partners in their firm.
2.1.8 Size of family law team: the majority
of the 117 respondents responding to this question reported that
their family law team was comprised of six or more fee members.
39% were members of a team of between one to
five members
50% were members of a team of between six to
12 members
9% were members of a team of between 13-20 members
2% were members of a team of more than 21 members.
2.1.9 Nature of the firm's family law work:
almost all respondents (94%) described their firm as carrying
out both private and public law family work. The remainder (6%)
did only public law work.
2.1.10 Firms' fee income from family legal
aid: 115 respondents indicated that their firms were involved
in family legal aid work to the following extent:
17% reported that this accounted for less than
10% of the firm's FI
19% reported that this accounted for between
11-25% of the firm's FI
22% reported that this accounted for between
26-50% of the firm's FI
17% reported that this accounted for between
51-75% of the firm's FI
12% reported that this accounted for between
76-90% of the firm's FI
13% reported that this accounted for more than
90% of the firm's FI.
2.1.11 Personal fee income from legal aid:
117 respondents described the extent of their own involvement
in legal aid work as shown below. The majority were heavily involved
in legal aid work.
3% derived less than 10% of their FI from legal
aid
1% derived between 11-25% of their FI from legal
aid
8% derived between 26-50% of their FI from legal
aid
7% derived between 51-75% of their FI from legal
aid
20% derived between 76-90% of their FI from legal
aid
62% derived more than 91% of their FI from legal
aid.
2.1.12 Personal fee income from children
legal aid: the majority of the 117 respondents to this question
reported a heavy involvement in this type of work.
3% derived less than 10% of their FI from this
source
3% derived between 11-25% of their FI from this
source
10% derived between 26-50% of their FI from this
source
8% derived between 51-75% of their FI form this
source
19% derived between 76-90% of their FI from this
source
57% derived more than 90% of their FI from this
source.
2.1.13 Greatest percentage of personal practice:
from the three possible options, of the 118 respondents,
92% stated that the greatest percentage of their
personal practice came from public law children work.
4% gave the greatest percentage as coming from
private law children work;
2.1.14 The effect on firms' work of the
proposals: respondents were asked to select from five options
the likely effect of the proposals on their firms. The 116 respondents
replied as follows:
7% were likely to do more children legal aid
work
29% were likely to reduce the amount of their
children legal aid work
36% were likely to stop children legal aid work
9% were likely to merge with another firm
19% were not likely to do any of the above.
Those who indicated "none of the above"
were asked why this was, and responses were of the following nature:
Undecided (10 responses);
The amount of this work would stay the same (five
responses);
Three indicated that they would close the firm;
Two that the firm would restructure.
2.2 Case details
2.2.1 Average cost per Special Children
Act case: there were 87 valid responses to this question.
The average cost ranged from £2,700 to £17,179.
The average cost was between £5,500 and
£9,000 in around half of these responses.
2.2.2 Preference for London/non-London or
national rates: of the 107 respondents,
62% preferred the London/non-London rates, and
38% the national.
Almost all (97% or 37) London respondents preferred
the London/non-London rates;
Over half (58% or 40) of those outside London
preferred the national rate.
2.2.3 Case cost comparisons
Respondents were asked to provide information
about their last six Special Children Act cases. Details analysed
included: the original profit costs figure; whether the case reached
Level 3c in the proposed regime; and profit costs under both the
London/non-London and national rates of the proposed fee regime.
Almost all cases (92%) reached Level 3c. The tables below contain
comparisons between the current and suggested regimes. A number
of cases were excluded from the analysis because they were likely
to escape the proposed structure or contained calculated values
which were unlikely to occur under it. (It was apparent that respondents
found it difficult to interpret the proposed structure.) Because
of the limitations of the survey, these cost comparisons cannot
portray the effect of the proposals on the casework of the ACL
membership as a whole. They describe the effect on those cases
for which responding members were able to provide valid details
at that point in time.
Cases contributing to the tables were selected
according to the following criteria:
— Each case contained values for each
relevant variable.
— Each case reached Level 3c.
— Original profit costs did not exceed
£20,000.
— The calculated costs under the proposed
regime fell within a range of greater than £2,500 and less
than £5,100—a likely range for most cases under the
proposed scheme.
Table 1
CASES FROM LONDON FIRMS AT PROPOSED LONDON
RATES
|
Old fee |
New fee |
Difference:
new less old
total value |
% change
on all cases |
| Mean |
£6,484 |
£4,084
| -£211,149 |
-37% |
| Min | £670 | £2,781
| | |
| Max | £16,450 | £5,011
| | |
| Total value | £570,570
| £359,421 | |
|
| No of cases | 88 |
| | |
Table 2
CASES FROM NON-LONDON FIRMS AT PROPOSED NON-LONDON RATES
| Old fee | New fee
| Difference:
new less old
total value
| % change
on all cases |
| Mean | £6,975 | £3,905
| -£721,452 | -44% |
| Min | £768 | £2,502
| | |
| Max | £17,615 | £5,086
| | |
| Total value | £1,639,043
| £917,591 | |
|
| No of cases | 235 |
| | |
| | |
| |
Table 3
CASES FROM LONDON FIRMS AT PROPOSED NATIONAL RATE
| Old fee | New fee
| Difference:
new less old
total value
| % change |
| Mean | £7,258 | £3,829
| -£339,461 | -47% on all cases
|
| Min | £1,002 | £2,562
| | |
| Max | £17,822 | £4,836
| | |
| Total value | £718,504
| £379,043 | |
|
| No of cases | 99 |
| | |
Table 4
CASES FROM NON-LONDON FIRMS AT PROPOSED NATIONAL RATE
|
Old fee |
New fee |
Difference:
new less old
total value |
% change |
| Mean | £6,816 | £3,833
| -£679,961 | -44% on all cases
|
| Min | £768 | £2,520
| | |
| Max | £17,616 | £5,081
| | |
| Total value | £1,553,956
| £873,995 | |
|
| No of cases | 228 |
| | |
Tables 5 and 6 below look in more detail at the final fifth
column of the above tables. They take the percentage change for
each case according to the relevant rate and, dividing the number
of cases into four equal groups, show how each of these quartiles
fared. In table 5, for example, 25% of cases would have lost more
than 51%; a half would have lost more than 35% (and a half less
than 35%) and the upper quartile value shows that 25% of cases
lost less than 7%.
Table 5
PERCENTAGE CHANGE, QUARTILE VALUES: LONDON/NON-LONDON
RATES
| London cases |
Non-London cases |
| Lower quartile | -51% | -58%
|
| Median | -35% | -38%
|
| Upper quartile | -7% | -8%
|
| No of cases | 88 | 235
|
Table 6
PERCENTAGE CHANGE, QUARTILE VALUES: NATIONAL RATE
| London cases |
Non-London cases |
| Lower quartile | -59% | -58%
|
| Median | -45% | -38%
|
| Upper quartile | -24% | -8%
|
| No of cases | 99 | 228
|
3. VIEWS ON
THE PROPOSALS
This section of the questionnaire sought practitioners' views
on the detail and effect of the proposals.
3.1 The ability to continue to represent and advise under
the scheme: practitioners were offered three options to describe
their views of the proposed fee regime. Of the 104 responses:
— Around three quarters thought that the fees were
not realistic in any circumstances; this proportion applied to
both London and non-London respondents.
— A further 22% thought that they could continue
if they reduced the time allowed per case.
— And 2% thought that they could continue to do
good work at these rates.
3.2 An uplift for Law Society Children Panel members:
almost all of the 105 respondents (99%) felt that there should
be such an uplift.
3.3 An uplift for certain clients: all 105 respondents
to this question thought there should be such an uplift.
3.4 An uplift for cases involving a foreign/immigration
element: the vast majority (93%) of the 104 respondents thought
that there should be such an uplift.
3.5 Agreement with the LSC definition of exceptional cases:
of the 104 respondents to this question, 91% disagreed with the
LSC definition.
Those who disagreed were asked what they would consider an
economically viable threshold. Of the 96 respondents:
— Around half (51%) selected the option of twice
the fee.
— 13% selected the option of three times the fee.
— 37% preferred the "other" option.
When asked to specify what other option would be suitable,
32 respondents made a number of comments:
— Several suggested 1.5 times the fee.
— A number indicated a preference for hourly rates.
— Others stressed the complexity of cases.
— And others rejected fixed fees in principle.
3.6 Uplifts or exceptional cases at level 2: based on
103 responses, 89% thought that it was not reasonable to have
no uplifts or exceptional cases at this level. Those who did not
think the LSC approach reasonable in this respect were asked what
they would consider as the definition of an exceptional case.
There were 74 responses to this question, with some giving more
than one suggestion or comment. By far the most often mentioned
(38 mentions) related to complexity. This was described, for example,
in terms of clients/cases involving learning disabilities, mental
health problems, and multiple experts or parties.
— 14 respondents found it hard to define or took
this opportunity to reject fixed fees.
— Four suggested a definition similar to the Bar's,
a SIP form or similar One wanted the judge to decide and another
the current guidelines 3 respondents wished all cases to be considered
exceptional
3.7 Lower rates for solicitor advocacy than counsel:
of the 103 responding:
— 81% thought that barristers' graduated fees should
apply.
3.8 Amount of personal advocacy currently undertaken:
of the 102 respondents:
— 20% reported that they did all of their own advocacy.
— 71% did most of their own advocacy.
3.8.1 Regionally: the percentage doing most of their
own advocacy was similar for both London and non-London respondents.
But those outside London were more likely to say that they did
all of their own advocacy (25% compared with 9%.) In contrast,
London respondents were more likely to say that they did some
of their own advocacy (18% compared with 4% of non-Londoners.)
3.9 Changes to the amount of personal advocacy under
the proposed scheme: when asked whether the scheme would change
the amount of personal advocacy undertaken, of the 103 respondents:
— 81% stated that they would do less.
— 13% that the amount would stay the same.
— 7% that they would do more.
3.10 Preparedness to undertake level 2 work at the proposed
rate: of the 103 responding,
— 14% stated that they were prepared to do this.
— 65% that they were not.
— 22% that they were undecided.
3.11 Funding of pre-proceedings work as licensed work:
of the 102 responding:
— 60% agreed that this was acceptable.
Those disagreeing were asked how this work should be funded.
There were 13 responses. The most common comment was "don't
know" from four of these. Another two suggested "the
same as now"; another one an hourly rate; and a further response
suggested Legal help". Other suggestions were for a new fund;
a pre-certificate limited to £1,500; an extendable Legal
Help; rolling up this work into the overall fee for the case;
and an "important" rate at the top end of the rates
for panel solicitors.
3.12 The economic viability of the proposed pre-proceedings
rates: of the 101 respondents:
— 7% thought the rates viable.
3.13 The reasonableness of the proposed escape: of the
101 responding:
— 84% did not think this proposal reasonable.
3.14 Representation at the pre-proceedings stage:
— 7% of the 102 respondents agreed with the proposal
that there should be no representation at this stage.
3.15 The minimum value payment: there were 101 responses
to this question:
— 42% agreeing with the £25,000 value.
— 41% agreeing with the £50,000 value.
— 18% opting for an "other" value.
3.15.1 "Other" Options: those selecting the
"other" option were asked what this should be; there
were 15 responses to this question:
— Most common (five responses) preferring no set
amount or zero.
— The next most common response (three) was "don't
know".
— There were two suggestions of £100,000.
— A further two of £150,000.
— The remaining two suggestions were for £5,000
and £75,000.
3.15.2 Reasons for other options: when asked to give
a reason for their suggestion, 14 respondents gave reasons that
were divided between the need for a lower rate to ensure local
provision and rural coverage, and the need for a higher rate to
sustain practices and provide appropriate remuneration for experienced
solicitors.
3.16 The LSC requirement for a specified number of advice
and assistance cases: of the 102 respondents to this question:
— 20% thought this reasonable.
November 2006
114
Complemented by the Judicial thematic review of the Judicial Case
Management Protocol for care proceedings. Back
115
These problems are outlined in detail by the latest survey of
the social care workforce (Adult, children and young people-Local
Authority Social Care Workforce Survey 6, Report No 35-Social
Care Workforce Series (2006) Local Authority Workforce Intelligence
Group), which includes lack of suitably qualified applicants and
turnover rates. Back
116
Available independent research funded by the DCA indicates over
one third (34%) of cases begin care proceedings without a core
assessment (Brophy 2006) Research Review: Child Care Proceedings
under the Children Act 1989: London: DCA). Back
117
Paragraph 174, Carter report. Back
118
See, eg direct relevance of Article 6 (the right to a fair trial)
and Article 8 (the right to family and private life) to child
law. Decisions may well prove irreversible in such cases, thus
the European Court has held that there is an "even greater
call than usual for protection against arbitrary interferences,"
and legal representation required where the stakes are high. Back
119
See, Brophy J (2006) Key features in the profile of children and
parents subject to care proceedings, in Research Review: Child
Care Proceedings under the Children Act 1989; DCA: London. Back
120
Chapter 6 of Handbook. Back
121
Available research also demonstrates strengths of the current
family justice system with benefits for children and parents compared
with practices under previous legislation, the input of specialist
child care lawyers has been central to that development (see Brophy
2006; 84-87, ibid). Back
122
Comments by the Judiciary on Civil and Family Legal Aid: Proposals
for Procurement: Civil Legal Aid (2006) April (http://www.judiciary.gov.uk/publications-media/judicial-views-responses/index.htm) Back
123
ie Being healthy; staying safe; enjoying and achieving; making
a positive contribution, and experiencing economic well being. Back
124
Page 37, The Review of the Child Care Proceedings System in England
and Wales. Back
125
Brophy 2006. Back
126
At paragraphs 177 to 179. Back
127
Indeed it was argued in July 2006 that the PPP will have additional
cost implications for local authorities which have not been addressed
by government (see speech, Paul Fallon, Review of the Child Care
Proceedings System in England and Wales, Children Law UK Seminar
14 July 2006). Back
128
"The need for good public funding of family legal work",
speech May 2006. Back
129
Research indicates most cases contain multiple allegations of
child maltreatment (ie more than one of sexual, physical and emotional
abuse and neglect) and multiple concerns/allegations leading to
failures of parenting including mental illness, drug abuse (and
refusal to accept treatment for these), chaotic lifestyles, inability
to protect a child from a violent partner, failure to co-operative
with health and welfare agencies, male violence, inability to
control/cope with a children, involvement in crime, inability
to cope with/control a child (Brophy 2006: 14-16). Back
130
Available research indicates most parents (84%) are likely to
be on income support; about 27% have a physical disability and
some 22% a learning disability; some 61% of cases also contained
a parent who was abused as a child and over half of cases (58%)
contained children in families who were not a full siblings (based
on data collected by Hunt et al. (1999) quoted in Brophy
(2006: 16-17). Back
131
LSC 11th September 2006. Back
132
Airey v Ireland 2 EHHR 305 24. Back
| 
