Evidence submitted by the Rt Hon Sir Mark
Potter, President of the Family Division; Chairman of the Family
Justice Council. (LAR 224)
1. As President of the Family Division,
I am also Chairman of the Family Justice Council. In that role
I presented, and I fully endorse, the response of the Council
to Consultation Paper "Legal Aid: A Sustainable Future",
as an overview of the potential implications for family justice.
The purpose of this opening statement is to highlight the serious
concerns of the judiciary as to the likely adverse effect on court
proceedings, particularly those relating to children, should the
proposals be put into effect in their present form.
THE IMPACT
OF THE
PROPOSED CHANGES
ON THE
FAMILY JUSTICE
SYSTEM
2. My preliminary observation is that, in
certain crucial respects, the current proposals run counter to
the aims of the Carter Review in that they:
(1) do nothing to promote best practice within
a preferred supplier community;
(2) do nothing to retain preferred suppliers;
(3) will weaken judicial control of necessary
work, given that there are no task- based fees which derive from
effective case management.
(4) will accelerate, rather than reduce,
the flight of specialist solicitors and advocates away from publicly
funded family work.
Public Law Care Cases
3. Family Judges are particularly dependent
upon the expertise of firms specialising in the representation
of children (in particular those acting for the child's guardian
appointed in every care case) for the effective case management
of proceedings. It is an essential corollary of the need for such
case management, that the court is able to direct a party to undertake
specific tasks to this end, as well as to make up for deficiencies
in local authority preparation. That party is almost invariably
the child's solicitor.
4. The structure proposed by the LSC in
its present form;
(a) makes no provision for such additional
tasks;
(b) instead of being a graduated structure
(as recommended by LordCarter), provides for fixed fees with no
uplifts for complexity, and no panel uplifts for accredited experienced
practitioners;
(c) does not provide parity with the Bar
for specialist children's panel solicitor advocates;
(d) is not tailored to meet the requirements
of the revised Protocol for public law cases, which is in the
course of finalisation and will govern proceedings once finalised;
(e) provides for fixed advocacy fees which
take no account of the number of inter-related separate hearings
to be funded out of one fee;
(f) provides on a crude averaging basis for
fixed (ungraduated) fees across the board.
5. Thus the previous uplift for panel membership
will be redistributed across all suppliers. It will reward the
ineffective at the expense of the specialist panel members who
provide high quality work, in particular the children solicitors,
whose expenses in most cases exceed the average fee. On this basis,
it is likely that specialist children panel suppliers will be
unable to remunerate the tasks they are ordered/requested to perform;
the preferred suppliers will be priced out of the market and the
less qualified and experienced non-specialist suppliers will remain,
ie the very opposite effect to that intended by Carter.
6. A solution to the problem of uneven reward
under a fixed fee system, proposed to Lord Carter by the judiciary
but not adopted in his report, was to link the right to payment
of an increment above the fixed fee to items of "extra"
work/case management specifically authorised by the judge.
Private Law Cases
7. In private law, ancillary relief and
other proceedings where "non-means tested, non-merits"
Legal Aid is unavailable, there has already been a dramatic increase
in unrepresented and poorly represented litigants. Unrepresented
litigants are now the norm in anything other than ancillary relief
cases between persons of means. They take a great deal of careful
management and time, frequently failing to identify the real issues,
including those which the court should pursue in relation to their
children. They often absent themselves from critical hearings
(including enforcement) and make continuous case management difficult,
thus increasing delay and costs for the court, CAFCASS and other
parties.
8. The LSC proposals, unmodified, will increase
the number of unrepresented and poorly represented litigants in
these categories of case because of the concept of the global
fee from which all representation has to be paid eg the FDR, any
injunction proceedings and a s 8 hearing, thereby making such
hearings cost ineffective for advocates and litigators alike.
The proposal to limit the Bar's Graduated Fee Scheme will constitute
further serious erosion of the availability of quality representation
in publicly funded family work.
COST DRIVERS
IN FAMILY
JUSTICE AND
THEIR IMPACT
ON THE
LEGAL AID
BUDGET
Public Law
9. The primary cost driver in public law
children proceedings is the extent to which expert assessment
is required in the course of the proceedings. The pre-proceedings
Protocol recommended by the CCPR may have the effect of ensuring
greater pre-proceedings assessment. However, the capacity (and
in some cases the opportunity) of Local Authorities, to do that
work is limited and post-proceedings professional/expert assessment
will remain necessary. That cost will not be substantially alleviated
unless the recent recommendations of the Chief Medical Officer
are implemented (no doubt a distant prospect).
10. There is an ever increasing volume of
multi-cultural cases, often involving persons of uncertain immigration
status, in which differences in culture, language and extended
family dynamics add hugely to the difficulties and costs. Where
interpreters' services are required, the length of time taken
at a hearing may be almost doubled.
11. More generalised cost drivers are the
increasing complexity of cases generally, poor social work, poor
communication with parents and other agencies involved with families,
and inadequate legal advice before commencement of proceedings.
12. The steady increase in alcohol and drug
addiction produces more and more inadequate parenting. This increases
the number of cases and, within those cases, the delays in disposal
which are necessary where rehabilitation is a realistic prospect.
Second (and even third) generation care cases are regularly encountered.
13. In a number of cases, particularly those
of alleged child abuse, improvement in scientific and medical
knowledge has led to more sophisticated tests and procedures,
as well as expert argument as to whether abuse can be established.
JUDICIAL CONTRIBUTION
TO THE
CONTROL OF
COSTS
14. Unlike civil litigation, family cases
are not amenable (save in a relatively few private law cases)
to the discipline of a costs order imposed by the judge in respect
of adjournments or wasted time and costs. The parties are usually
legally aided and, in public law cases, judges are reluctant to
impose costs orders on Local Authorities, whose frequent procedural
and substantive failings stem largely from shortages and high
turnover in staff and limited budgets. Such orders are exceptional
and are reserved for particularly glaring examples of malpractice
or unreasonable conduct. Generally speaking, judges are intensely
aware of the need to contain Legal Aid costs in Public Law cases.
They will excuse representatives from attendance where it appears
unnecessary, but such opportunities are limited.
15. Beyond the suggestion in paragraph 6
above, it should not be the function of the judiciary to regulate
the level of solicitors/advocates' fees. The key contribution
of the judiciary in this field must be firm and close case management
at the early stage in order to reduce the number of hearings.
In this respect four current judicial initiatives have recently
been launched in Liverpool, Hampshire, London and Cardiff in conjunction
with the revision of the Public Law Protocol following the CCPR.
QUALITY ASSURANCE
IN ADVICE
AND REPRESENTATION
16. I do not consider that the judiciary
should be involved in accreditation (save by way of providing
references), or continuous assessment and quality control of individual
advocates. Quality control is the function of the professional
bodies by a system of review in relation to which judicial input
is appropriate: see Recommendation 5.3 of Lord Carter's Review
and the Opening Statement of Thomas LJ.
November 2006
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