Written evidence submitted by Lord Bach,
Ministry of Justice
FAMILY LEGAL AID FUNDING FROM 2010
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.
BACKGROUND
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.
FAMILY FUNDING
SCOPE CHANGES
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 AND
NYAS/OTHER SOLICITOR
GUARDIANS
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.
CAFCASS' WORKLOAD
AND PERFORMANCE
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.
CONSULTATION WITH
OTHER ORGANISATIONS
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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