Select Committee on Constitutional Affairs Written Evidence


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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