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."
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."
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."
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.
The Commission's consultation document, however,
provides no analysis or explanation of the drivers behind these
rising average cases costs.
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
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."
13. Sir Mark Potter, President of the Family Division,
"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."
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;
- 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
- 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
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.
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.
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.
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
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 actionincluding
in response to previous recommendationson 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
Ev14, paragraph 13 Back
Q 5 Back
LSC consultation paper, paragraphs 2.06-9 Back
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
The protection of children in England: a progress report,
The Lord Laming, March 2009, HC 330, paragraph 8.11 Back
The protection of children in England: action plan-the Government's
response to Lord Laming, May 2009, Cm 7589, page 53 Back
See appendix to this report. Back
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
Ev 15 and 16; and see the analysis of the Family Justice Council
at Ev 59ff. Back
Q 2 Back
Work of the Family Bar, Debora Price PhD & Anne Laybourne
MSc, on behalf of the FLBA, February 2009, chapter 14 Back
See, for example, Ev 16, paragraph 20, Ev 57, paragraphs 18-21
and Ev 58-9, paragraphs 34-37. Back
Constitutional Affairs Committee, Fourth Report of 2003-04, Civil
legal aid: adequacy of provision, HC 391, para 15 Back