Family Legal Aid Reform - Justice Committee Contents

Written evidence submitted by Lord Bach, Ministry of Justice


  I am writing further to the Justice Committee's request for a memorandum on the proposals set out in the joint Ministry of Justice/Legal Services Commission (LSC) consultation Family Legal Aid Funding from 2010, specifically in relation to the funding of guardians and independent social work in cases involving the separate representation of children.


  Before responding to the specific issues you raise, it may be helpful to set out the context and rationale for the consultation proposals.

  Spending on family legal aid has increased dramatically in the last seven years. It has increased in actual terms by 46% from £399 million in 2001-02 to £582 million in 2007-08. Although this increase is partly explained by increases in the overall volume of cases funded, rising case costs is also a factor. For example, in private law children cases the volume of applications decreased by 7.7% between 2004-05 and 2007-08. But increases in case costs were substantial; the average cost of each case increased by 14%.

  These cost increases are unsustainable within a limited budget. Pressure on the legal aid budget is likely to increase in the current economic climate as more people require advice on housing, debt, welfare benefits and family breakdown. If we do not control rising costs then we will be forced to cut services to clients, either through cutting the scope of the services that are funded, or by reducing the financial eligibility for services.

  The consultation proposals aim to contain inflationary costs and maintain legal aid expenditure at 2007-08 levels. This will be done through the introduction of two standard fee schemes and changes to the scope of funding. The Private Family Law Representation Scheme proposes standard fees for private family law proceedings. The Family Advocacy Scheme proposes that the same fees are paid for advocacy regardless of the advocate undertaking the work. Historically, barristers have generally been paid higher rates (under the Family Graduated Fee Scheme) than employed or self-employed solicitors paid on hourly rates for the same work. Finally, the consultation also proposes changes to the scope of funding in relation to certain disbursements, which are the proposals with which both the National Youth Advocacy Service (NYAS) and the Justice Committee are concerned.

  The proposals build on the work undertaken by the Ministry of Justice and the Legal Services Commission (LSC) to encourage a greater use of mediation to resolve family disputes. The consultation proposes reducing the number of exemptions from the requirement to consider mediation before a legal aid certificate will be granted. Previous amendments to the use of exemptions saw the proportion of family disputes going to mediation increase by 2% and the number of agreements reached through mediation increase by 1.6%.

  The LSC and the MoJ continue to promote and increase awareness of the availability and benefits of mediation through the Community Legal Advice (CLA) website, the CLA helpline and the MoJ funded Family Mediation Helpline. The LSC mediation strategy—Publicly Funded Family Mediation: A Way Forward was published in August 2008. Following this, the LSC recently announced the award of training grants to the value of £100k to train new mediators. The LSC is also working with the Children and Family Court Advisory and Support Service (Cafcass), Her Majesty's Courts Service and the judiciary to pilot the use of mediation at court.


  There has been a significant rise in the cost of disbursements in family cases in the last seven years from £37.5 million in 01/02 to £75.4 million in 07/08, an increase of over 100%. These costs now constitute 14% of the family budget, up from 9%.

  Disbursement costs in legally aided cases, like solicitor and barrister costs, must be subject to control. The pressures on the legal aid budget are such that no element of legal aid expenditure can go without scrutiny.

  The LSC estimate that experts' costs constitute two thirds of disbursement costs in family work, based on an internal review they have undertaken on experts' costs. For this purpose the definition of experts includes those providing independent social work expertise.

  A key part of our approach to controlling experts' costs was set out in the LSC strategy for family legal aid—Making Legal Rights a Reality for Children and Families published in March 2007. This stated that the LSC would ensure that legal aid resources are not diverted to finance activities outside the LSC's proper remit, which is to provide legal advice and representation. In order to control this, the LSC has consulted on and implemented various changes to the funding of disbursements, namely:

    — In October 2007, removing residential assessments from the scope of funding as this is work that is not seen as a priority for legal aid;

    — In September 2008, the LSC consulted on removing funding for supervised contact centres, thereby further clarifying that it is not within the scope of the legal aid budget to meet costs in relation to treatment, therapy, training; and

    — educative or rehabilitative work with children or families who are involved in family proceedings,

  The contact centre proposals followed discussions with Cafcass and the Department for Children, Schools and Families (DCSF) when it was agreed that this work should more properly be the responsibility of the DCFS/Cafcass. This view was also accepted by the Family Justice Council. The implementation of those proposals was delayed to allow affected services and Cafcass to consider their contracting arrangements for 2009-10.


  Cafcass' functions, as set out in the Criminal Justice and Court Services Act 2000, in relation to children who are involved in family court proceedings, are to:

    — Safeguard and promote the welfare of the child.

    — Give advice to the court about any application made to it in such proceedings.

    — Make provision for children to be represented in such proceedings.

    — Provide information, advice and support for children and their families.

  Cafcass is legally obliged, under rule 9.5(1)(a) of the Family Proceedings Rules 1991, to provide a guardian in cases where the court makes an appointment. There are, however, cases in which Cafcass is unable to provide a guardian within a timescale that is regarded as acceptable by the court (the situation is different in Wales as Cafcass Cymru has always been able to allocate a guardian without delay).

  The courts can appoint non-Cafcass guardians for a variety of reasons, including but not limited to delay, who may be the Official Solicitor or "some other proper person" (which may include NYAS). Where NYAS is appointed, this arrangement should operate under the terms of a protocol that was agreed between Cafcass and NYAS in December 2005. This arrangement is consistent with the President's April 2004 Practice Direction, which governs the circumstances in which Rule 9.5 appointments are to be made.

  The number of Rule 9.5 cases has increased substantially with marked regional variations, including in the levels of use of non-Cafcass guardians and both Rule 9.5 appointments of Cafcass and Rule 9.5 cases funded by the LSC have been increasing steadily. Latest LSC figures show that in comparison to the same period last year, the number of Rule 9.5 cases is up by 27.7%, while the rate of appointments of Cafcass in 2008-09 is 40% higher than in 2007-08.

  The current consultation proposals do not affect the funding of the legal representation of children in Rule 9.5 cases and there is no suggestion that this would not continue. The LSC would also fund the necessary expert work, such as a psychiatric assessment, if it were outside the remit of an appropriately competent Cafcass guardian. However, the appointment of non-Cafcass guardians and funding of independent social work expertise to carry out the functions of a guardian ad litem cannot be regarded as specialist legal advice or representation and is therefore outside the remit of the services that the LSC is statutorily required to fund.

  The LSC had a number of discussions with Cafcass and the DCSF in developing these proposals. Cafcass and the LSC have shared data to ensure that we all have a complete picture of the number of these cases. This has enabled the development of a shared view about how these cases should be dealt with.


  The recent surge in levels of care applications have resulted in renewed pressure on Cafcass resources since the proposals were initially discussed. The proposals would not be implemented without further consideration of Cafcass resources and their ability to undertake this work. However, it was never intended that this work should fall to the limited Community Legal Service (CLS) Fund which was set up under the Access to Justice Act 1999 to provide specialist legal advice.

  The LSC believe that Cafcass is better placed and a more appropriate public body to provide the guardian ad litem in rule 9.5 cases. The LSC does not contract directly for the provision of independent social workers and therefore lacks control over their use and cost and has no measure or control of quality. Cafcass have quality standards and a clear management and commissioning structure in relation to this work, which can be used to assure the quality and appropriateness of work undertaken. Cafcass has no power to commission independent social workers or other types of expert in rule 9.5(1 )(c) cases where the court has appointed "some other proper person" as a guardian ad litem.

  NYAS currently have a contract with the LSC for legal representation of children who are the subject of Rule 9.5 appointments and funding for this is still available.

  Currently around 10% of divorcing and separating parents make family court applications relating to future arrangements for their children. These are likely to be the most intractable cases, in which one or both parents have chosen the courts, or "officialdom", to resolve their difficulty. Cafcass is independent of the courts and has been set up with the purpose of supporting children and families though what can be a difficult and stressful process.


  As well as the current public consultation, the LSC has continued a close dialogue with contracted providers and those paid directly by the LSC, through regular meetings with stakeholder groups through the LSC's Family Representative Body Group and its Family Stakeholder Group. Membership of both these groups include representatives from the Law Society, Resolution, the Family Law Bar Association, the Legal Aid Practitioners Group, the DCSF, Cafcass and Cafcass Cymru.

  The LSC has also met separately with NYAS to discuss their concerns in detail. In addition, the LSC is meeting with the National Association of Guardians ad Litem and Reporting Officers (NAGALRO) and independent social workers have attended some of the consultation events that the LSC has been running across the country.

  I can confirm that the LSC has been in touch with the Office for the Third Sector (OTS) for their views and the OTS has confirmed that they will be responding to the consultation in due course.

  As I have made clear to NYAS directly, and to the many MPs who have written to my department on their behalf, the LSC will be carefully considering all responses to the consultation and will continue to meet with Cafcass and others while the evaluation of the consultation takes place. Although this consultation was due to close on 18 March, the deadline has now been extended, at the request of stakeholders, until 3 April. I would encourage all organisations to continue their dialogue with the LSC, as well as responding formally to the consultation to ensure that their views are fully considered.

  I am copying this response to Delyth Morgan.

Parliamentary Under-Secretary of State

Ministry of Justice

23 March 2009

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