Family Legal Aid Reform - Justice Committee Contents

Examination of Witnesses (Questions 1-19)


16 JUNE 2009

  Q1 Chairman: Welcome. Do you think this debate has been conducted in the right terms, the debate about how we can provide for legal aid in the family law area on a maintainable basis? It tends to be very much in terms of the cost and quite clearly governments have had to take account in recent years of the rising costs. Is the debate being conducted in the right terms?

Baroness Butler-Sloss: I have not been involved in that part of it. Lucy Theis, who is chairman of the Family Law Bar Association, has been deeply involved in the last two years. Of course I have retired and I have only come along because I feel compelled to come because of what I see as the very damaging effect on the access to justice and the very damaging effect to children and to parents. I think the Legal Services Commission, with the problem of the £2 billion bill and the need to cut costs, has been going at it in a very broad, blunt way without looking at what might be a better way of using the relatively small amount of money, comparatively, that they want to allow family lawyers to have. If they would listen to the suggestions that are being made for a better use of the money, one of the major points that seems to me to stand out a mile is you should not be giving the same amount of money across the board to the simple case and the difficult case. If you do that, you do not look at the fact that a large proportion of care cases are extremely difficult. They have very complicated medical evidence. Social workers since Baby P have been of course putting a lot more children through the care system and this may or may not be the right thing for children, but it is a definitive moment in a child's life and you will all know it means it will change the child's life. Either the child remains with parents, which may not be the right thing, or the child will be going into an alternative home and lose their parents perhaps for the rest of their lives. Those cases need more money than the simple case. The LSC at the moment appear to be saying that you should have a more or less similar figure, regardless of what the work is. That will have an inevitable effect of voting with your feet by lawyers, barristers and solicitors from this work. It is already happening under the current figures and it will accelerate. I spoke yesterday to the president of the Family Division and your clerk may have told you that he was willing to give evidence if you wanted, but not today. He is the chairman of the Family Justice Council and you have their report. They are extremely concerned as are the Family Division judges and judges generally as to the impact of this. The impact means that they will not get the experienced lawyers to do the work. The cases will take longer, will actually cost more in judges taking longer, on legal aid, and be less well done by inexperienced lawyers and will not have the effect of the best that could be done for children. A very telling point I took, I think from the Family Justice Council, was not only is there a real danger of inadequate access to justice which may create miscarriages of justice, but there is a double tragedy for children whose families have failed them. They are caught up in the justice system which is failing them further. Is this what we are doing to our children?

  Q2  Julie Morgan: You have already mentioned the complexity of the cases that need the extra effort and how important they are in children's lives. It is suggested that that is one of the reasons for the growth in legal aid spending. Could you describe to us what is the type of case? Why have cases become so much more complex? Could you describe the sort of situation that you are dealing with?

  Baroness Butler-Sloss: Lucy, as chairman of the Family Law Bar Association, spends a great deal of her time doing these difficult cases.

  Lucy Theis: They have grown in complexity for a number of different reasons. First of all, because there has rightly been a very critical analysis, not only by those who represent vulnerable families and children, but also by the courts, in relation to the statutory threshold that has to be passed, and the evidential basis for that, before there can be decisions made that may lead to a child being permanently removed from their home or not, or returned back home where they may be at risk of suffering harm. As a result of that there is a very careful investigation by the court and by those who represent not only the children but also the parents and the other parties to the case in relation to the evidential foundation for the allegations that may be being made in relation to the risk of significant harm. Secondly, the complexity in many cases that arise from the medical evidence—for example, where there are non-accidental head injuries; where there are issues in relation to sexual abuse. Baroness Butler-Sloss chaired the Cleveland Inquiry and there are still cases even 20 years on from the Cleveland Inquiry, where there has been misdiagnosis in relation to allegations of sexual abuse. There is a very recent decision by Mr Justice Holman that deplores the practice that was undertaken in relation to the diagnosis in that case. It is a number of factors that have led to the complexity in relation to cases and demonstrates the increasing need for expertise in relation to those who conduct these cases, not only solicitors but also barristers. If you do not have that expertise—I think it is a point your Chairman made in a recent article in The House magazine—there is an adverse impact on the hearings if that expert advice is not available—they have been alluded to already by Baroness Butler-Sloss.

  Q3  Julie Morgan: It is the most vulnerable children that are going to be affected by these proposals?

  Lucy Theis: Absolutely. It is the children and families who are struggling, on the bottom rung of the ladder, who are by and large the subject matter of these hearings.

  Caroline Little: The Association of Lawyers for Children's purpose is to improve outcomes and represent children through the legal process and enhance their representation. We reflect membership throughout the country. Our solicitor members are involved on a daily basis, seeing children in their placements and representing children at every tier of court. Our barrister members do the representation throughout the court. We work together. One of the effects of the fixed fees that were imposed on solicitors a year and a half ago in October 2007, which this Committee reported on previously, was that there was no recognition of the expertise of the Children Panel. The net effect of that is that, although children's solicitors are still Children Panel members, parents' representatives are not even solicitors any more. They are paralegals and often people who have very, very little experience of the matters dealt with in court. Children's solicitors are carrying these cases and often carrying the cases for parents' representatives because the outcomes for children are affected if parents' representation is poor. The other aspect is of course that, with the influx of cases recently, in a certain volume of cases children's solicitors and barristers are representing children without the benefit of a guardian for quite a large part of the case.

  Q4  Chairman: I am getting a little confused. You are almost giving the impression that all children's cases are inherently complex, in which case it is not possible to advance the argument that there is an increasing complexity which is added to demand. Can you clarify that?

  Caroline Little: They are not all inherently complex. There are some cases where you are dealing with the 11th child of parents with mental health or alcohol or drug problems and the outcome is almost inevitable when proceedings are brought. Those cases are dealt with very efficiently and work through the court system very, very well. Complexities can arise when other members of the family wish to come in and care for those children. There is always something in the case that makes it unusual.

  Q5  Julie Morgan: If these cases are not dealt with fully and properly at the court hearing, has any assessment been made of the future cost to different services?

  Caroline Little: No. It is a short term measure. We have always said that we reflect the difficulties that society has. 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, although there is considerable research in relation to the complexities that families that come before the care courts have. There is independent research that provides a lot of information on the multidimensional difficulties that families have.

  Elena Fowler: I am from the National Youth Advocacy Service. We represent children in private and public law proceedings and also offer advocacy and a range of support services in a socio-legal model. In private law proceedings the complexity issues are exactly the same but very often parents are not represented at all and those costs then will fall to the children's solicitor.

  Q6  Chairman: I have sometimes had the argument put to me that parents who have access to legal aid in those proceedings are in a relatively stronger position than those who perhaps by a marginal difference in income do not have access to legal aid.

  Baroness Butler-Sloss: That is true. You will appreciate it is now four years ago but I had 35 years on the bench doing children's cases for most of that time. In a great many private law cases where the parents either are not represented or are not very well represented—90% of children private law cases go through perfectly normally, but there are 5% to 10% of hard core cases which turn out to be quite a lot of cases over a year—the child needs to be represented, either by a CAFCASS guardian or very often by NYAS, where CAFCASS cannot cope and ask NYAS to do it. I have had those cases lasting six or seven years. I had them still going when I left the High Court, went to the Court of Appeal and handed them over to someone else. These parents become locked into something. The only way that one can cope with it is to try and get the child's position separately dealt with. It is extremely difficult to get a guardian for a child in a private law case and get it paid for.

  Q7  Chairman: The LSC argues that CAFCASS is funded to provide this assistance.

  Baroness Butler-Sloss: They are failing at the moment. There are 270 cases in London where they cannot get a guardian.

  Judith Timms: I am Judith Timms from the National Association of Guardians. There are over 600 cases waiting nationally and this is the highest number that we have had in the last few years. We have heard about the pressures on the legal practitioners but what the Legal Services Commission proposals are going to do is also remove independent social work input from their funding scope in private law cases. That would remove a whole raft of welfare evidence which the judges need to have before them in order to determine the best interests of the child. We have in this country to our credit a wonderful system of tandem representation of the child, separate representation by both a children's solicitor and a children's guardian. What these proposals do is a double whammy because they attack both wheels of this tandem. The tandem model is a very sophisticated quality assurance mechanism for children. That is why it was set up and that is why we in the Association of Guardians are concerned about children, because guardians are the people who see the very heavy end cases. We are talking about in excess of 60,000 children a year. Guardians have an enormous amount of accumulated, front line experience. We are dismayed at the prospect that the independent social work input is going to be restricted under the proposals because that will certainly limit children's access to justice.

  Q8  Dr Whitehead: During the current, recent consultation a number of concerns appear to have centred around the reliability of the LSC's data and indeed the extent to which you could say it has understood the legal services market. What progress do you think has been made in terms of elucidating that understanding during the consultation process?

  Lucy Theis: Can I deal with both aspects of that? Firstly is the data and secondly is the question about understanding the market for family advocacy. In relation to the data, one of the reasons why the consultation period was extended from 18 March to 3 April was because of the concerns in relation to data. Six months after the consultation was published on 17 December, here we are now on 16 June and there are still serious data issues. The FLBA, the Bar Council and other organisations have engaged very constructively in relation to trying to resolve the data issues. We have had weekly meetings with the various statisticians; from the LSC, the Ministry of Justice, and from the Bar Council, Professor Martin Chalkley. Professor Paul Fenn has been brought in by the LSC from the University of Nottingham and also there has been statistician representation from the Law Society. The most recent meeting was this morning. It finished at five to one. I have spoken to Professor Martin Chalkley, who was present at that meeting today, and the fact is that they are still unable to agree the basic data that underlies the proposals that are being made. If I can just tell you what he told me, firstly, that there is broad agreement that the LSC's existing model is inadequate because it is based on assumptions about which there is very little idea as to validity regarding in particular the cost of solicitor advocacy. There is broad agreement between the statisticians on the structure of the model upon which to evaluate alternative proposals but, he says, the model is only as good as the data upon which it is built. Essentially, there is still a considerable amount of work to be done in relation to agreeing the data upon which to build the structure on top. From the meeting this morning, both Paul Fenn and Martin Chalkley are going away to look again at the data and they are going to report back next Friday. They have a further statisticians' meeting on Tuesday 30 June to discuss those issues further. The short answer to your question is that there are still very serious data issues in relation to the foundation of these proposals and here we are, six months later, and they have not been resolved. In relation to the barrister data regarding the family graduated fee scheme, many of the items that have been identified by Professor Martin Chalkley have been of great assistance to the LSC in the sense that we have helped them improve their ability to be able to collect the data and the systems by which they have been collecting the data. There was a difficulty discovered this morning that may mean there has been at least £3 million, 3% of the amount spent on barristers' fees, double counted in the data that we thought was clean. This is on the basis that, as we understand it, when a claim is made, if it is sent back to the barrister for further inquiries, that it is registered in the LSC data as having been a payment made. When it comes back and is paid on the correct form, it is registered as being paid again. Even at the most fundamental level—the family graduated fee scheme was meant to be a gold standard, with a relatively simple data system that was set up, yet there are still difficulties in relation to that. In relation to the solicitor advocacy, they have absolutely no idea as to what the current cost of solicitor advocacy is. The implications for this are that if they proceed on the basis of the flawed data in fact the impact in relation to the budget is completely unknown, because they may be right or they may not be.

  Q9  Chairman: Lord Bach wrote to me before he knew about the example you have just quoted and said, "I understand that none of the issues identified has been of sufficient statistical significance to materially impact on the proposals."

  Lucy Theis: I am afraid, with all due respect, I would fundamentally disagree with that. The most recent letter is set out in paragraph 11 of our briefing document. The complaint has always been that the family graduated fee scheme has been rising in cost. If you look at the last three years, the cost has remained pretty consistent so it has achieved what it set out to do, namely to provide cost control and to ensure that the expertise due to the graduation within the fee structure was retained to be able to conduct the work. Can I deal briefly with the second point in relation to the advocacy market? As you know, nine days before the close of the consultation the LSC instructed Ernst and Young to be able to provide a report in relation to family advocacy. We regard that late instruction as extraordinary because we thought perhaps it may have been better to have got that evidence first before making the proposals that they have. We understand from the documents that we have seen that that report is going to cost somewhere between £70,000 and £100,000, so it is an expensive report that is being obtained. It is looking at fundamentals in relation to the family advocacy market, including the effect in relation to self-employed advocates continuing to be able to do the work. That report, first having been told it was going to be available in August, we are now told will be available at the end of June, but there is going to be no opportunity given to any of the stakeholders to be able to respond to that evidence. We would say it is a critical piece of evidence in relation to the impact of what they are proposing, particularly when the impact falls on the most vulnerable in society. In terms of the process, we say in effect that it makes a mockery of the consultation process to produce such an important piece of evidence without the courtesy of even a meeting after the report has been produced. They have rather grudgingly said that they are going to share it with us but in terms of providing an impact and the effect in relation to what is proposed it is extremely important. We say the process is manifestly unfair and fails to comply with what they said in their own consultation paper about inviting stakeholders to provide evidence to validate or challenge evidence that they had.

  Q10  Dr Whitehead: I think I know the answer to this in terms of what you have said about the Ernst and Young research into the market. There has been no liaison between the profession and the LSC as far as the Ernst and Young report is concerned?

  Lucy Theis: We have been continuing to have meetings at practitioner and statistician level. In relation to the LSC, they have been to see Dr Debora Price who you may remember produced the King's College Survey that the FLBA produced at the beginning of this year as a result of the survey in October. That obviously only relates to barristers. It was not commissioned to be able to deal with the advocacy market. We have been as helpful as we can in relation to providing whatever data we have from that. In relation to data concerning solicitor advocacy, the short answer is that there is no data, despite the fact that you in your own report in 2007 said that it was important that that data should be collected. Frontier Economics, who were then the Department of Constitutional Affairs' own expert advisors and reported in 2003, said that this data should be collected. We are aware, after the instruction of Ernst and Young, that a survey was put out to solicitors on the LSC website. We were told last week that the response to that survey was eight. It has absolutely no statistical basis at all. That is the bottom line.

  Q11  Chairman: Not eight solicitor advocates; just eight responses?

  Lucy Theis: Eight responses. I am unclear whether it is firms or individuals, but I do not think it would make any difference, frankly. There were over 1,600 responses to the King's College but it was commissioned for an entirely different purpose. Debora Price has had two meetings I think with Ernst and Young to provide what assistance she can.

  Q12  Dr Whitehead: Lord Bach has said to us that the Ernst and Young research is in his consideration not relevant to the fundamental structure of the LSC's proposals and that the sharing of the report with the profession was a courtesy. You do not apparently agree with that.

  Caroline Little: We do wonder why the research has been undertaken if it has no value in the context of the advocacy consultation that is taking place. What is apparent from the solicitors' point of view is, when the initial Carter consultation came out and fixed fees were being imposed, the LSC and government have no idea of the extent and breadth of solicitor advocacy at every level of court. They have no idea and no information at all. Indeed, from a response that has been sent to you yesterday or today to a review of the fixed fee regime, you will see that solicitors have not been rewarded for preparation for advocacy since October 2007 and that is a serious deficit for solicitor advocates. It discourages solicitor advocacy.

  Q13  Dr Whitehead: Could I turn briefly to the question of overall spending? The Ministry of Justice has now released revised figures for spending on the family graduated fee scheme which show spending falling in 2007 and 2008 from the previous year and the total spend at under £90 million rather than the £100 million which was referred to in the original consultation. That seems to me quite a difference. Has that in your view made any difference to the LSC's approach as far as consultation and post-consultation is concerned?

  Lucy Theis: The short answer is no. We have tried to persuade them that the family graduated fee scheme is a scheme that works. It provides cost control and it retains expertise. We have made suggestions about recalibrating parts of it so that it can be extended to solicitor advocates. In fact, when we first suggested it in 1999, we suggested it should be an integrated advocacy scheme to cover all advocacy, whoever does it. We have no difficulty with that as a principle. That is something that we have said right from the beginning, but it has to be a scheme that rewards the work that is actually undertaken but does not over-reward the less complex work at the expense of the more complex work. A matter of very great concern for us is the fact that, even though this Committee has clearly expressed some very real concerns about the impact and the effect of these proposals, we were told last Friday that the LSC nevertheless are going to make their announcement on 14 August, come what may. They have made that decision in the knowledge of the concerns being expressed not only by all the different stakeholders but also by this Committee. If I may say so, it is treating this Committee with contempt in relation to the way that it wants to steam on with the proposals irrespective of the Committee's views and failing to give those who should have it an opportunity to be able to respond and make a contribution to evidence that is being produced in defiance of fairness.

  Q14  Chairman: Can I turn to the LSC's view that it is really all about swings and roundabouts? In this, as in other aspects of the law, what you lose on the swings you gain on the roundabouts. Is that no longer in any way an appropriate method in the area of legal practice?

  Caroline Little: Solicitors have been working under a fixed fee regime since October 2007. The swings and roundabouts method is one that you will not find any applause for among childcare practitioners. As I said earlier, solicitor Children Panel's members are carrying a very heavy burden at lesser pay than parents' representation. When the original consultation came out, we said quite properly believing in a system where parents should have quality representation as well as children that parents' representation should be paid at a greater rate because it is more difficult. They do not have professional clients. Unfortunately, because there is no measure of who represents them any more, the solicitors are carrying that burden at a lesser payment. They are falling between the fixed fee and the escape, which is double the fixed fee, quite regularly now. In relation to advocacy, the swings and roundabouts model does not work at all because, from a solicitor's point of view, if you want counsel to do a complex case on behalf of a family member or a child, you will not be able to get one if the fee is not correct for such a complex case. It is as simple as that. It is not the same as solicitors conducting the work to prepare the case. It is trying to get an advocate to conduct it.

  Baroness Butler-Sloss: I am sure this Committee knows that the Family Bar divides up into those who do financial cases with private clients who make a good living and those who do children cases who make very often a relatively small living. They earn just about enough to pay chambers and all the rest of it and have an income, but it is not a part of the legal profession, either Bar or solicitors, who are in it for making the money. It is also very stressful, very emotional, very exhausting for judges and for lawyers. The return on it at this moment is not particularly good, to the extent that I nowadays when students come to me and say, "You are a family judge. Should I go into family law?" advise them not to. They will not get a good enough income and they will have a great deal of aggro in doing it. If the new scheme comes in, of course one should not be advising them to do it.

  Lucy Theis: In relation to the position regarding fixed fees, the fact is that the Bar tends to do the more complex cases. If you have a system of fixed fees with no graduation, the flight from the bar from doing this sort of work will happen. It will become a stampede to the door. Debora Price in her report then, when we were facing cuts of 13%, concluded as a result of the survey that over 80% of those doing the work were either going to reduce the amount they do or stop doing it. I can give a living example of that in relation to a case I was involved in last week, which was a private paying money case. My opponent was a junior barrister of 20 years' standing, very experienced, who up until last year was doing 100% of publicly funded childcare work. He has now reduced that to 40% and he is going to reduce it even further. Many colleagues of his of the same experience and expertise are doing the same. It is already happening. In relation to the impact of these proposals and the flight from this work, that is what will happen.

  Baroness Butler-Sloss: I know solicitors where the family partner is under considerable criticism from the other partners for being carried by the other partners. Certainly two or three firms I know, particularly down in the West Country, have had to give up because the other partners will not allow them to continue to do family work.

  Q15  Chairman: Do you think the LSC is assuming that a legal services market has developed, rather as envisaged under the Legal Services Act, when it has not actually done so?

  Baroness Butler-Sloss: Yes. I think that is right.

  Lucy Theis: That is precisely the point. There is an aspiration in relation to what they want the market to be but that is not what is happening. The fact is that solicitors and the Bar have shared rights of advocacy for many, many years. They operate in the way that they do because that is the division in relation to expertise and roles. We suspect, as we have set out in our report, that there are in fact two distinct markets. We will wait with interest to see what Ernst and Young say in relation to their report. Our difficulty is that at the moment on the LSC's stated timetable neither this Committee nor the stakeholders will have an opportunity to be able to respond to that. Effectively, the opportunity to respond to one of the most critical pieces of evidence is going to be denied in relation to the decision that will be made.

  Q16  Chairman: You mentioned the survey with eight responses. Does nobody know how many solicitor advocates there are in family law?

  Caroline Little: We know that there were 2,500 Children Panel members who have now reduced to below 1,800 and that we are getting older and older. There are very few young ones coming through. It is Children Panel solicitors who tend to be the expert advocates on behalf of children to provide consistency of representation, through seeing them in their homes and appearing at every court level for them. There is a reducing body of children's solicitor advocates.

  Q17  Chairman: In-house solicitor advocates?

  Caroline Little: Those are in-house. They are solicitors who conduct the cases from beginning to end. We are independent. The reduction in expertise has been marked for the last three years in specialist solicitor representation.

  Elena Fowler: If I can broaden this into what is happening in relation to independent social work, under these proposals, exactly the same drift will happen because by removing independent social work as recommended in the proposals and putting it under CAFCASS we will lose the expertise of the most experienced child care practitioners. We will actually see a loss in terms of legal representation and in terms of the social work input which will be very serious in relation to outcomes for the most vulnerable children that we work with.

  Baroness Butler-Sloss: The other problem which is very serious is that, through no fault of CAFCASS, they cannot cope at the moment. Therefore, to suggest that they should be taking anything more on when they really have grave problems of managing the work that they have at the moment is pie in the sky. It just is not going to happen.

  Judith Timms: It would have a disastrous impact on children because there are so many children waiting for guardians already. It would mean extra cases for CAFCASS to absorb. I do not think anybody believes, as Baroness Butler-Sloss has said, that CAFCASS has the capacity to do that.

  Q18  Chairman: The LSC believes that they are funded to do it. How have they got into this degree of error?

  Judith Timms: Exactly. This is part of a crude funding war, if you like, between the DCSF and the LSC and the MoJ. What the LSC are trying to do is to slough off the responsibility for funding all independent social work and push that onto CAFCASS and say, "Right, that is your responsibility. You do the social work input. We will do the legal input." It is a very crude split. That is why NYAS's work has been hit so hard because NYAS is the only holistic service for children that provides both those services, the independent social work and the legal input, in a manner we thought the government wanted, a joined up policy in relation to children. I think there is a misunderstanding between DCSF and the LSC about how they are interpreting the over-arching agenda in relation to safeguarding children as set out in Every Child Matters. I was concerned in speaking to the LSC that they do not appear to be accepting the wider government responsibility for the over-arching strategy in relation to child protection. After all, all of these matters which we are concerned with and all the lawyers, solicitors and social workers in court are there because we are trying to salvage the best interests of some very vulnerable children. There does need to be that clarification about how the LSC are interpreting their responsibility in the wider safeguarding agenda, because there is no evidence of it in the proposals.

  Elena Fowler: To suggest that the welfare principle is not at the heart of legislation for children makes a mockery of children's access to justice.

  Caroline Little: The ALC sat on the care proceedings reform stakeholder and ministerial groups and the one thing that is very clear from that is that the desire for excellence seems to stop at the doors of the court. The responsibility moves from one department to another. I would invite you to say that that is an incorrect assumption in relation to children. There should be excellence through the court process for children at every level.

  Q19  Julie Morgan: The ALC has expressed concerns about the impact of these proposals on the public law outline. Could you explain to us what those concerns are?

  Caroline Little: Yes. The public law outline relies on expertise of the lawyers doing the work. The idea is that you have fewer hearings but they are very carefully focused on the interests of the children and progressing the case speedily and well. That means that the people attending court on behalf of children and parties need to know how to do the work. They have to be experts. They have to do the work behind the scenes before going to court. They have to be very focused on the agenda for the child, the timetable for the child, what is required, what expertise the court needs. You cannot do that without expert representation. It is as simple as that.

  Baroness Butler-Sloss: It is a judicially led process. My successor, the president of the Family Division, and the judges of the High Court Family Division have put together this particular outline, which is a case management arrangement, so that they can get the best, the most efficient, and have fewer court hearings but make the court hearings work with less expense in one sense. The judges gave a response to this LSC consultation paper, as indeed the Family Justice Council has, chaired by the president, with their very great concerns about the impact of these LSC proposals on the judicial process. It is under great pressure anyway, but it will not be working properly under the new schemes. This is why the judges are so concerned.

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