Examination of Witnesses (Questions 60-68)
CAROLYN REGAN,
HUGH BARRETT
AND SARA
KOVACH-CLARK
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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