Supplementary evidence submitted by Prof
Judith Masson (LAR 231)
LEGAL AID IN CHILD CARE CASES COMMENTS ON
THE MARCH CONSULTATION PAPER
INTRODUCTION
It is clear that the changes the LSC has made
will result in a much higher proportion of cases being paid under
the current system (an hourly rate). The changes to the level
for escape from fixed fees will mean that the financial risks
to practitioners of doing this work are reduced. However, the
LSC scheme will continue to over-remunerate solicitors in some
cases and under-remunerate them in others. It is far from clear
that the system will operate to ensure that those who lose on
one case will gain on another. Risks to solicitors will be particularly
high where they are instructed by someone who is not a party to
the proceedings initially (chiefly fathers without parental responsibility
or relatives offering care) or where parents effectively drop
out by failing to give instructions. Although the uplift for panel
membership is retained where cases are paid at an hourly rate,
it is clear that the LSC does not support the notion of the child
care panel as providing an indication that the solicitor has particular
expertise in this area. This has major implications for the continuation
of the panel, which remains an important indicator for other professionals
(especially where they are referring parents or relatives) that
the solicitor has the necessary knowledge and skills. Should child
care work cease to be a specialist area of practice, the consequences
for vulnerable families, the courts and local authorities are
likely to be negative with cases taking longer, more disputes
and less satisfactory resolution.
The LSC has not published the data on which
it has based the revised scheme. Even if it can average certificate
costs, it does not have adequate data on case characteristics,
nor can it link all the certificates of a case together, so it
cannot know how the costs for one party to a case impact on the
costs of other parties, or whether this is a product of the way
the case has been handled by that party.
The LSC will need to have very clear guidance
for itself and its contractors so that it can apply its new fixed
fee scheme to non standard cases such as cases which move between
CC and High Court, cases which are consolidated etc
PANEL UPLIFT
The LSC notes that it has absorbed the uplift
into the standard rates it has set. Effectively this means that
those without expertise who do this work will get the same benefit
as those with it.
50% REDUCTION FOR
NOT PARTICIPATING
THROUGHOUT THE
PROCEEDINGS
Only the parents with parental responsibility
and the children are routinely respondents at the beginning of
the proceedings. Father who do not have PR have a right to notice
and can apply to join. Such men may be involved throughout the
proceedings, even ending with care of the children but under the
proposed scheme their solicitor will only receive a lower fee,
unless the work done amounts to 2x the standard fee ie 4x the
work done. It seems them the original escape threshold of 4x work
is being applied here. A father will not have parental responsibility
if he was not married to the mother or the child's birth was registered
jointly before November 2003 or registered by the mother alone
at any time and he has not obtained PR by agreement or court order.
A substantial proportion of fathers involved in care proceedings
do not have PR; some of these fathers end up caring for the child
alone or with new partners. Given that there lack of party status
reflects their legal rights, not their involvement in the child's
life it is extremely hard to justify a legal representation payment
scheme which provides less to the representatives of such men.
Such a scheme will make it more difficult for fathers to find
a solicitor willing to act for them.
The same problems may arise where a relative,
most usually a person offering care seeks to participate in proceedings.
Although not all such people will end up as carers, it is essential
in the interests of the child that those who do have had good
legal advice. For example, where grandparents offering care are
not legally advised they may accept the suggestion of the local
authority that they should care for their grand child under a
residence order without any discussion about the support that
the local authority will provide. This will leave the grand parents
dependent on their own resources and any state benefits for which
they qualify. The benefit system has not been designed to provide
for retired people caring for children. In order to ensure that
arrangements for the child can be maintained, carers may require
residence order allowances or fostering allowances. A specialist
child care lawyers can be expected to advise on such issues and
negotiate with the local authority. It should be noted that public
funding for such relatives is means and merit tested, so only
the poorest relative carers qualify. Relatives without public
funding tend to play a more limited part in proceedings; work
such advising them about alternatives which would otherwise be
undertaken by their lawyer is likely to fall to the children's
guardian, who has a duty to act in the best interests of the child
under the court rules.
Where a party fails to give instructions solicitors
are expected to notify the LSC, the legal aid certificate is then
revoked. The proposed new funding system creates a major disincentive
against doing this, at least where acting for the parent has involved
substantial work earlier.
AN INCREASE
FOR 2 OR
MORE CHILDREN
It is not possible for me to say whether a 50%
increase is appropriate, although the Care profiling study is
likely to be able to produce some useful data on this in due course.
Complex cases with many children are likely to reach the escape
clause. Presumably, where a second child is born during the proceedings
the uplift will apply—the LSC paper makes no mention of
this. The LSC will have a strong interest in seeing that cases
are consolidated, rather than proceeding as separate proceedings
involving the same mother. Currently practice on consolidation
varies; some cases listed separately on the DCA database have
in fact been consolidated.
There are cases where two or more children follow
the same pathway through the proceedings so that acting for two
children is much the same as acting for one. In such cases there
will be over-remuneration in that the additional fee will not
be reflected in additional work. However, it is also common that
the number of children very much adds to the complexity. For example
a case in the care profiling study (by no means untypical) four
children had three different fathers, two of who actively participated
in the proceedings although neither was a party throughout. There
were three different care plans and two separate final hearings—the
threshold hearing dealt with all the children and orders were
made for two of them on that date, but another hearing dealt with
the orders for the remaining children, a month later. In cases
with three or more children there may be under-remuneration. Concerns
about the adequacy of the fee may make it more difficult for children's
guardians or courts to identify a solicitor willing to act. At
the time the solicitor is instructed it is unlikely that the complexity
will be clear, so the solicitor will not be able to predict whether
the escape clause will operate
The LSC state that their data shows that 85%
of cases concern two or fewer children. Taking the DCAs Familyman
data for the courts in the Care profiling sample in 2004, the
percentage of cases involving three or more children ranged from
15% to 34%. This is likely to reflect demographics, local authority
practices and court practices relating to transfers. It does suggest
that solicitors acting for children may be faced with more multi-child
cases in some areas.
REPRESENTING BOTH
PARENTS
Joint representation will only arise if the
parents are cohabiting, this is not usual. The Care profiling
study will provide data about the proportion of parents who are
currently both represented by the same solicitor throughout the
proceedings.
It is clearly in the LSC's interest for both
parents to be represented by one solicitor. However, the LSC has
no way of influencing a parent's choice of legal representative
directly. The LSC states that it will monitor conflict of interest
more closely but does not indicate how it will do this. Domestic
violence is a common feature in care proceedings but may be denied
or minimised by the parents.
HIGH COURT
CASES
Under the current system a case may be transferred
to the High Court and be retransferred when this aspect has been
dealt with. It is unclear how such cases will be dealt within
the new fees structure. For example a case in the care profiling
study started in FPC and transferred to the CC and then to the
High Court before any allocation hearing because it had an international
element. Case transferred by the High Court to the CC and dealt
with there until the local authority made an application to withdraw
the proceedings, and for ancillary orders for the children to
leave the jurisdiction and for the issue of passports. These matters
were dealt with by the High Court. It should also be noted that
apart from the decision to transfer back to the CC by a High Court
Judge, all matters were dealt with by the same judge, variously
acting as a county court judge or acting High Court Judge.
RELATED PROCEEDINGS
The decision not to pay an additional fee where
there are related proceedings will act as a disincentive to dealing
with placement orders in the care proceedings, rather than later
in separate proceedings. The Family Justice Council has recently
produced guidance to show that it is possible for care and placement
to be heard together, although it is difficult to achieve this.
The judge, the guardian and the children's solicitor may need
to work hard to ensure that the local authority takes the necessary
steps to make this possible. Creating a financial disincentive
for the lawyers for all the publicly funded parties can be expected
to make it more difficult to achieve a placement order in the
care proceedings. This will add to the delay in achieving adoption
for those children where this is the plan and is contrary to government
policy.
March 2007
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