Family Legal Aid Reform - Justice Committee Contents


Conclusions and recommendations


Family legal aid: a service for vulnerable children and families

1.  [The President of the Family Division noted that neither Lord Laming, nor the Government, made reference to the provision of resources in recommending and agreeing, respectively, system-wide targets, indicators and commitments in relation to reducing delays in care proceedings.] He described this as "a very unfortunate omission". We agree with this view. (Paragraph 13)

2.  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. (Paragraph 18)

Process: conduct of consultation

3.  The Legal Services Commission initially said that they had never regarded the Ernst and Young study as "fundamental" to the shape of the proposals. It was additional economic analysis which they would have done anyway and the timing was a "resource issue". However, the Commission did concede that an assessment of the impact on suppliers of its proposals—part of the Ernst and Young study—was very important, as a substantial drop in supply would cause a "significant problem", and that the study was "fundamental" to the decision on whether the new fee scheme went ahead. We agree. (Paragraph 28)

4.  We emphasise and welcome the undertaking given to us in oral evidence by the Legal Services Commission that, "we have always been clear that we would show stakeholders a copy of the [Ernst and Young] report and allow them some time to comment on it." We regard a very much higher and consistent level of constructive engagement between the Commission and all its stakeholders is required if effective progress is to be made with family legal aid reform this year, 2009. (Paragraph 30)

5.  We cannot come to a definitive view on the statistical significance of the outstanding data issues. What clearly is significant is that the existence of flaws in the evidence base has damaged the confidence of practitioners in the process that the Legal Services Commission is conducting. At the same time, the LSC has commissioned—extremely late in the process—fundamental economic research into its supplier base where hitherto it was relying on anecdote. These discrepancies and gaps in its evidence, which can come as no surprise to the Commission, should have been sorted out in advance of any proposals being published. The objectives of the economic research could have been discussed with stakeholders before it was commissioned. The Legal Services Commission has made a substantial rod for its own back by not doing so. (Paragraph 32)

Substance: implications of the proposals

6.  We recognise that a majority of family law advocacy is carried out by solicitors but that the more complex and serious cases tend to be conducted either by more experienced or specialist solicitor advocates or senior members of the family Bar. The vast majority of our evidence, from both solicitors and barristers, as well as the judiciary and the department's own advisory body on family law, is that the re-balancing of resources between complex and simple cases has gone too far and that the mantra of "swings and roundabouts" simply does not reflect the reality of how family law advocacy, in the most serious cases, is conducted. If the scheme is implemented as proposed there is a serious risk of an exodus of experienced practitioners from publicly-funded family law. (Paragraph 52)

7.  The overall fee reductions for family advocacy will fall disproportionately on female and black and minority ethnic practitioners who, for a variety of reasons, have tended to specialise in publicly-funded family law work. This is discriminatory. It also has serious implications for the development of a more diverse pool of experienced courtroom lawyers from which candidates for a more diverse judiciary can emerge. (Paragraph 53)

8.  We note an emerging consensus around a revision of the Legal Services Commission's proposals developed by the Association of Lawyers for Children. We urge the Commission to give these new proposals careful consideration. (Paragraph 54)

Guardians and independent social work

9.  The Legal Services Commission, in oral evidence, denied that the issue of paying for guardians and independent social work in 9.5 cases was an "unseemly battle", or "argument over who should be picking up the tab", between departments. (Paragraph 64)

10.  The Legal Services Commission said it was confident that discussion between the Commission and the three relevant departments "will provide a satisfactory result for all parties." We urge the Commission and the Government to remember that vulnerable children are the most important party to those inter-departmental proceedings, and to sort the problem out. We would like to share the Commission's confidence but we can see no objective grounds for its optimism. We urge the Government to monitor this situation, providing evidence of progress by the time the House returns. (Paragraph 64)

11.  We very much welcomed supplementary evidence from the National Youth Advocacy Service indicating that the Legal Services Commission was contemplating funding some social work via legal aid as well as developing a specialist children's contract for legal services in public law cases (Paragraph 66)

Conclusions

12.  The legal aid structure being designed by the Legal Services Commission seems to be based on a pattern of supply which simply does not yet exist. The Commission appears to have failed to take an objective evidence-based approach to delivering the outcomes identified for it by the Government. (Paragraph 68)

13.  The Legal Services Commission says that its proposals are "not about cuts", and the lawyers told us that they are not asking for more money. Such fundamental accord should create a platform on which it should be possible successfully to design an effective system that will deliver the best possible outcomes for those who find themselves enmeshed in the family legal system and need advice and representation, whether on a relatively straightforward case or a whole cluster of complex matters. We believe that the two key issues raised with us are the equality of reward for equality of work and the need to fund the more serious and complex cases properly and in a way that reflects the real dynamics of the profession. We believe that these issues are capable of resolution on the basis of constructive engagement between the Government, Legal Services Commission and stakeholders; but there needs to be a fundamental change of attitude on the part of the Commission. (Paragraph 69)

14.  We are also concerned about the argument over funding of guardians and independent social work. The Legal Services Commission told us that what was important was that it funded what it was statutorily obliged to fund and that the Children and Family Court Advisory and Support Service funded what it was statutorily obliged to fund. We do not agree. We believe that what is important is that vulnerable children trapped in intractable court cases, whether public or private, receive the advice and representation that they need and that the court has available the best welfare information it can have. If achieving these goals requires a funding model that upsets departmental silos, so be it. (Paragraph 70)



 
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