Family Legal Aid Reform - Justice Committee Contents

Examination of Witnesses (Questions 60-68)


16 JUNE 2009

  Q60  Alun Michael: Could you tell us what comments you have received on that aspect? I am sure that people have commented on it even though you have defined it as out of scope.

  Sara Kovach-Clark: Many respondents to the consultation agreed with us that this is work that is more properly funded through CAFCASS. There are many others who do not and who believe that there is a conflict of interest with CAFCASS and in some cases then it is appropriate for the Legal Services Commission to pay for independent social work. Our view is that independent social work should be paid for as a matter of expertise and not as a matter of course and often we find ourselves paying for independent social work when CAFCASS have been unable or unwilling to allocate a guardian and that cannot be right.

  Q61  Alun Michael: You heard evidence earlier that a lot of the scene is a financial battle between different bodies. Do you want to comment on that in relation to this?

  Sara Kovach-Clark: Yes, I do. That is an unfortunate impression because we have been in discussions all along with CAFCASS about this and I do not think we have any intention of allowing this to be an unseemly battle and we will not be making any proposals to ministers without fully understanding the impact on CAFCASS and fully advising ministers both at the Ministry of Justice and DCSF to the impact on resources.

  Q62  Alun Michael: On reflection would it not have been better to put it in scope and allow that discussion to take place during the consultation?

  Sara Kovach-Clark: I do not think so, no; I think it is very important that we get the message out there that legal aid is for specialist legal advice and for expert evidence it is necessary for them to make that advice and representation relevant.

  Q63  Alun Michael: But there is a relationship between the two, is there not, at a variety of different levels. Would you not accept that there is a concern that there could emerge from this consultation a constraint on judicial discretion in the making of appropriate orders in particular cases?

  Sara Kovach-Clark: We would not want to constrain judicial discretion; however, we have to give due regard to the financial pressures that are on this as well and so it is important that we fund what we are statutorily obliged to fund and that CAFCASS funds what they are statutorily obliged to fund.

  Q64  Alun Michael: But getting the right organisation commissioning or paying for particular parts of work is in a sense an administrative issue. Is not the exclusion of this from scope really resulting in rather a fractured discussion about the issue?

  Sara Kovach-Clark: I do not think it is. I am confident that the discussions we are having with CAFCASS and DCSF and our colleagues at the Ministry of Justice will provide a satisfactory result for all parties.

  Q65  Chairman: Let us be clear, we are not talking about some administrative technicality but the representation of children in cases where their entire life and future is at stake. Surely this ought not to descend into what appears to be an argument between two organisations about who should be picking up the tab.

  Sara Kovach-Clark: There is not an argument between who should be picking up the tab. What we are discussing at the moment is how we make sure that services to children are maintained and how we make sure that each agency properly funds what it is statutorily obliged to.

  Q66  Chairman: So your view is that it is a CAFCASS responsibility to provide for guardianship services and independent social work, but you can see that there are cases where a conflict of interest might arise and an independent social worker needs to be appointed. In those circumstances do you think that it would be better for LSC to be paying rather than CAFCASS, given that we are talking about a potential conflict of interest? Are you satisfied that CAFCASS would in effect be paying for both?

  Sara Kovach-Clark: I think in cases of conflict where CAFCASS could be in a position to commission independent social work themselves from outside of CAFCASS to provide advice in cases of conflict, where the Commission should be funding—and we are not proposing to take it out of scope—is independent social work where parents are challenging the social work that has been done by a local authority who are taking their child into care. That, to me, is expert evidence and that to me is properly funded by the Legal Services Commission.

  Q67  Chairman: You will have obviously gathered from this session not only that there is considerable concern within the professions involved—people doing the work—and a wider concern; but that there is also, I think, a recognition that you do have financial problems to deal with. Without wishing to put words into the mouth of the Committee, which has not freshly reported on the issue, we share a lot of the concerns and we would want to be sure that the timetable that you have imposed on yourselves does not preclude reaching a satisfactory solution. Can you give us some assurance that you will not allow that to happen, bearing in mind that in your impact assessment you actually said, "Depending on the outcome of the consultation, the new fee schemes will be implemented in 2010." We are not even suggesting to you at the moment that a scheme should not be implemented in 2010, but that the timetable between now and then should not prevent you from reaching a solution which most of those concerned believe is a sensible use of the money reflecting the realities of the work. Can you give me some assurance on that?

  Carolyn Regan: We obviously need to address some of the issues which have been raised today and that is why discussions will continue, I think I am right in saying at least on a very regular basis so that we can resolve the issues raised, some of which have come up today and some of which have come up in our previous discussions. So we are aiming for 2010 but we will obviously continue the discussions with a view to resolving those outstanding issues.

  Q68  Chairman: Implementation in 2010 is not necessarily precluded by changing aspects of your scheme or even allowing a little more time, for example, for the research to influence both the scheme and the way that people respond to it.

  Carolyn Regan: Absolutely. Obviously we want to take into account both that research and the research that has been commissioned by the Family Bar from another consultancy; so both of those are relevant. There are other drivers, of course, on family law which we are looking at, together with the Bar and the Law Society—for example, costs of medical experts which has been mentioned—and all of those discussions form part of our recommendations to ministers.

  Chairman: We will continue to take close interest in this. Thank you very much for coming this afternoon.

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