Family Legal Aid Reform - Justice Committee Contents

2  Family legal aid: a service for vulnerable children and families

9. Much of the debate about family legal aid reform inevitably revolves around fees and payments, which gives the impression that the issues are solely about how much to pay lawyers. It is all too easy to lose sight of the overall purpose of family legal aid which is the provision of a service to families, and particularly to children, to enable them to gain access to justice and to help them navigate effectively through an increasingly complex system. The families, and particularly the children, involved are often confused, emotionally damaged and vulnerable. As Lord Laming stated in his progress report on child protection in the wake of the Baby Peter case:

"Children are our future. We depend on them growing up to become fulfilled citizens well able to contribute successfully to family life and to the wider society. It is of fundamental importance that the life and future development of each child is given equal importance. Every child needs to be nurtured and protected from harm."[13]

Family legal aid is part of this nurturing and protection and provides a vital service for vulnerable families and children. Their need for this service is as basic as their need for health, education and social services.

10. The Association of Lawyers for Children, representing both solicitors and barristers in family law, cited Lord Bach, legal aid Minister, as saying in 2008 that:

"were it not for the quality of children lawyers that we have at work in this country, then the vital job [they] do would not be done, children and families would not be represented, miscarriages of justice would be the norm, the children themselves would suffer, and the state would end up footing a far greater bill, socially as well as financially, in consequence."[14]

We asked what assessment had been made of such future costs to different services arising from family law cases not being dealt with fully and properly in court. Caroline Little, Co-Chair of the Association, told us: "We deal with the difficulties in society in relation to children. We have always asked for government to look at the knock on impact of not doing the work properly at care proceedings level. It is a very difficult measure. There has been no research in relation to that."[15] The key driver for the Legal Services Commission's current proposals seems to be, to use Lord Bach's words, the bill that the state is footing up front for family legal aid.

11. The Legal Services Commission says:

  • Since 2001, the estimated net cash cost of family legal aid has risen by 46 per cent. While this partly reflects a rise in case volumes, average case costs have risen far in excess of volume.
  • More money has been spent helping fewer people with, for example, private law cases rising 7.7 per cent. in volume but up 14 per cent in average cost per case (in public law family cases, the equivalent figures are rises of 5.7 percent in number and 31 per cent. in average case cost.
  • In particular, payments under the Family Graduated Fee Scheme (which covers advocacy by self-employed barrister) have risen by 32 per cent. over the last five years and now represent 10 per cent. of the overall civil legal aid budget (with the instruction of experts having increased by 58 per cent since 2004-05.[16]

The Commission's consultation document, however, provides no analysis or explanation of the drivers behind these rising average cases costs.[17]

12. Lord Laming's recommendations following the Baby Peter case included one for the Ministry of Justice to take action to "lead on the establishment of a system-wide target that lays responsibility on all participants in the care proceedings system to reduce damaging delays in the time it takes to progress care cases where these delays are not in the interests of the child."[18] The Government accepted the recommendation, responding that:

"The Ministry of Justice is working closely with the Department for Children, Schools and Families to establish a system-wide target for reducing delays that draws in all participants within the care proceedings system. Whilst the detail is yet to be finalised with the relevant key partners, the intention is to have an overarching objective, related to the timetable for the completion of proceedings for an individual child, supported by a suite of Key Performance Indicators owned by individual participants in the system. This will include commitments to continuous performance improvement in order to avoid unnecessary delay by Her Majesty's Courts Service, the Legal Services Commission, and the Children and Family Court Advisory Support Service. Improvement and success will be measured in a Balanced Scorecard."[19]

13. Sir Mark Potter, President of the Family Division, observed that:

"It is noteworthy that neither in Lord Laming's recommendation, nor the Government response, does any reference appear in relation to the provision of resources or the eventuality that a system already struggling under the constraints of limited and reducing budgets, may prove unequal to the task of achieving the 'continuous performance improvement' to which they will be obliged to commit themselves.

That, as it seems to me, is a very unfortunate omission. It is indeed a failure to acknowledge the elephant which, if it is not already in the room, has already planted its front feet well over the threshold. Overarching objectives, key performance indicators and commitments to continuous improvement are all very well, but they cannot alone achieve anything significant if they are unrealistic in relation to the resources available to the key partners in the system."[20]

We agree with this view.

14. The Association of Lawyers for Children set out what it regards as the key factors increasing costs of family court cases. These include:

  • the vast area of new jurisprudence and obligations arising from incorporation of the European Convention of Human Rights (ECHR);
  • the ever-increasing volume of papers in children's proceedings arising from the ECHR, new forms of documentary evidence and greater judicial expectations;
  • the use of e-mail which increases client expectations of contact and explanation by an order of magnitude;
  • the ever-increasing amount of case law, practice directions and legislative and other initiatives; the preparation requirements under the Public Law Outline;[21]
  • the increased focus on the whole 'care plan' in public law proceedings (rather than on the question as to whether to make a care order or not);
  • advances, and on-going research, in medical science, especially related to injuries, and in the understanding of child abuse;
  • fact-finding hearings in private law hearings;
  • the recognition of the need to take proper account of diversity issues;
  • and increasing numbers of litigants with English as a second language, and of litigants with learning difficulties, both of which impact on the pace, length, nature and cost of appropriate proceedings.[22]

15. The Family Law Bar Association emphasised the thorough critical analysis that must be undertaken by all concerned in relation to evidence that may lead to a child being permanently removed from their home without good reason, or returned back to a home where they may be at risk of suffering harm.[23] The Association also highlighted the work of Dr Deborah Price, King's Institute for the Study of Public Policy, on the reasons for case complexity.[24] In addition, the Association of Lawyers for Children (ALC) argued that local authorities were under-funded for the burdens placed on them by care proceedings and related duties and that this leads to longer proceedings, more hearings and more need of external expertise. The ALC also referred to a lack of experienced guardians due to under-funding of CAFCASS; increased numbers of litigants in person which can reduce court efficiency; a lack of family judges, sitting days and courtroom space; and to court closure and loss of court legal advisers.

16. Our witnesses argued that that none of the key factors driving up case costs were practitioner-led and described them as being the result of Government policies and decisions. They criticised the Government's strategy for dealing with the fall-out, characterising it as bearing down on the very resources needed to meet increasing systemic demands.[25]

17. We recall a key finding from our predecessor Committee's 2004 report on civil legal aid:

"It is vital for the Government to ensure that part of the cost calculation of policy initiatives includes an assessment of the impact on the legal aid budget and that there is adequate liaison between the Constitutional Affairs Department and departments such as the Home Office which legislate in relevant areas. This is a key recommendation; we expect the Government to be able to demonstrate that it has significantly improved its system for ensuring that legislative changes proposed by departments are costed to take into account the full impact on the legal aid budget."[26]

18. In seeking to control the costs of family legal aid, the Government seems to have failed to examine the factors pushing case costs up and has, therefore, not taken direct action—including in response to previous recommendations—on the actual pressures on the legal aid budget.

13   The protection of children in England: a progress report, The Lord Laming, March 2009, HC 330, paragraph 1.1 Back

14   Ev14, paragraph 13 Back

15   Q 5 Back

16   LSC consultation paper, paragraphs 2.06-9  Back

17   We do note however, the Legal Services Commission's willingness to fund trials of more radical measures to address cost factors in some instances such as the mediation scheme pilots being undertaken in Birmingham, Milton Keynes, Plymouth, Reading and Sheffield. See appendix to this report. Back

18   The protection of children in England: a progress report, The Lord Laming, March 2009, HC 330, paragraph 8.11 Back

19   The protection of children in England: action plan-the Government's response to Lord Laming, May 2009, Cm 7589, page 53 Back

20   See appendix to this report. Back

21   The Public Law Outline is a case management system for care proceedings developed by the Family Division judiciary with a heavy emphasis on case preparation to reduce the burden of court proceedings on the children in question. Back

22   Ev 15 and 16; and see the analysis of the Family Justice Council at Ev 59ff. Back

23   Q 2 Back

24   Work of the Family Bar, Debora Price PhD & Anne Laybourne MSc, on behalf of the FLBA, February 2009, chapter 14 Back

25   See, for example, Ev 16, paragraph 20, Ev 57, paragraphs 18-21 and Ev 58-9, paragraphs 34-37. Back

26   Constitutional Affairs Committee, Fourth Report of 2003-04, Civil legal aid: adequacy of provision, HC 391, para 15 Back

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Prepared 15 July 2009