House of Commons - Justice Committee

Government's proposed reform of legal aid - Justice Committee Contents

Written evidence from the Association of Lawyers for Children (AJ 48)

EXECUTIVE SUMMARY

A.1 The Association of Lawyers for Children ["ALC"] is a national association of lawyers working in the field of children law. It has over 1200 members, mainly solicitors and family law barristers who represent children, parents and other adult parties, or local authorities. Other legal practitioners and academics are also members. Its Executive Committee members are drawn from a wide range of experienced practitioners practicing in different areas of the country. Several leading members are specialists with over 20 years experience in children law, including local government legal services. Many have written books and articles and lectured about aspects of children's law, and several hold judicial office. The ALC exists to promote access to justice for children and young people within the legal system in England and Wales in the following ways:

(i) lobbying in favour of establishing properly funded legal mechanisms to enable all children and young people to have access to justice;

(ii) lobbying against the diminution of such mechanisms;

(iii) providing high quality legal training, focusing on the needs of lawyers and non-lawyers concerned with cases relating to the welfare, health and development of children;

(iv) providing a forum for the exchange of information and views involving the development of the law in relation to children and young people; and

(v) being a reference point for members of the profession, Governmental organisations and pressure groups interested in children law and practice. The ALC is automatically a stakeholder in respect of all government consultations pertaining to law and practice in the field of children law.

A.2 Impact of the proposed changes on the number and quality of practitioners is considered at pages 3 to 4. We explain that the government, which is well placed through its agencies to have conducted a proper impact survey, has failed to do so, and shows no signs of doing so now. We refer to the research currently being undertaken, in default, by The Law Society, and give our views as to the seriousness of the likely impact of these proposals both on the number and quality of practitioners.

A.3 Types of case which will not come before the court and how the issues involved will be resolved are considered at pages 4 to 5. We explain our view that a large proportion of the family cases taken out of scope will come before the courts but with the added disadvantage that the parents will be litigants in person, and we develop the consequences at paragraph 4.3 below.

A.4 What other action on legal aid could be taken is considered at pages 5 to 6. We refer to benefits of moving to a specialist Family Court jurisdiction, the introduction of "no fault" divorce, and the tackling of various "pinch points" within the family justice system such as CAFCASS and HMCS.

A.5 The implications of the government proposals are considered at pages 6 to 23. We set out and explain what we consider to be the five most serious implications of these proposals, namely (1) issues relating to the current Family Justice Review, (2) the singling out of a "domestic violence" component as a gateway to eligibility for funding in private law family cases, and the relegation of all other cases to the category of issues out of scope, (3) the impact of an increase in litigants in person, (4) the impact of introducing a single telephone gateway and (5) the resultant increase, rather than decrease, in acrimony and litigation.

1. What impact will the proposed changes have on the number and quality of practitioners, in all areas of law, who offer services funded by legal aid?

1.1 We confine our response to family law practitioners.

1.2 We refer to the research which is currently being undertaken on behalf of The Law Society by Andrew Otterburn. So far as we are aware no research whatsoever was undertaken by either the Ministry of Justice or the Legal Services Commission prior to these proposals being announced. This is despite the fact that the Legal Services Commission has extensive data on each provider's payments from the Fund, and is in a position, through its local contract managers, to obtain relevant information from providers. Both the Ministry of Justice and Legal Services Commission were asked on 19 January 2011[128] why they did not appear to think it part of their function to conduct such research, given that they were well placed to do so, in order that they could consider the impact of these proposals. We hope that they can explain this to the Select Committee, since they were not in a position to explain it to us.

1.3 We are not in a position to conduct such comprehensive research ourselves. However, from the information that we have been able to collect from our members we can provide an opinion as to the likely impact on the number and quality of practitioners in family law.

1.4 If these changes are made there will a significant loss of client base, and many providers will no longer be commercially viable. We think that a large proportion of those firms who receive the bulk of their income from publicly funded work will find that a 10% cut of fees will wipe out all profitability, and they will cease practice. Large firms, who do a proportion of publicly funded work (generally because of a longstanding commitment to do that work) will have to consider whether they can continue, in effect, the altruistic subsidy of legal aid departments. We think that many are likely not to re-tender later this year when a new tendering round begins for family contracts commencing in December 2011.

1.5 In many parts of the country we envisage that there will be insufficient provision to handle conflicts of interest in public law cases where there are often many parties as well as intervenors, all of whom will need to be represented by separate firms.[129]

1.6 We would anticipate a move from quality provision of service to a service where unqualified staff, often with little or no experience, work under inadequate supervision. This will not produce savings, since litigation will be less efficient and therefore more expensive. Inexperienced staff will not be in a position to give clients robust advice to accept compromise solutions rather than contest cases over trivial differences. Cases will be poorly run and bad points taken. The training opportunities for solicitors to gain experience and qualify on to the Children Panel will be seriously affected. The effect on the junior Bar will be disastrous. Advocacy standards will inevitably fall.

2. The government predicts that there will be 500,000 fewer cases in the civil courts as a result of its proposed reforms. Which cases will these be, and how will the issues they involve be resolved?

2.1 We assume that this is referable to the Table in Annex 1A of the Impact Assessment of Scope Changes,[130] since this states, in the explanatory paragraph, that "approximately 500,000 cases might no longer fall within the scope of legal aid funding". The figures for family are not broken down but are stated to be 211,000 for Legal Help (83% of the total), and 53,800 for legal representation (48% of the total). These have presumably be calculated by reference to the overall proposals set out in the Green Paper, and so they will include the cases to which we refer in detail at paragraph 4.2 below.

2.2 We do not know how these potential clients are to be assisted. Certainly they will not be absorbed by the NfP sector, since this will be particularly hard hit by the proposals. We regard it as highly probable that their problems will have to be resolved by the civil court. In other words, these persons will become involved in court proceedings as litigants in person, and without the benefit of legal advice or ongoing support in court through legal representation. We develop the consequences of this in more detail at paragraph 4.3 below.

3. What action could the government be taking on legal aid which is not included in these proposals?

3.1 We think there are a number of steps which could be taken, which are not included in these proposals, but would have a major impact in reducing the spend on family legal aid.

3.2 The government could accept that the family jurisdiction should be serviced by a Family Court, and introduce dedicated Family Court judges at all tiers. This would lead to much more robust case management, and facilitate much better continuity of judge responsible for such case management. That in turn would lead to cases being dealt with more efficiently and expeditiously, and this would itself lead to very significant savings in the legal aid budget,

3.3 No fault divorce could, at long last, be introduced. This would result in substantial savings in respect of Level 1 Legal Help, and free up considerable amount of judicial time.[131] So far as advice and assistance with divorce alone is concerned, we observe that if no fault divorce is at long last brought into effect, this will enable both direct and indirect savings to be made. There would be direct savings, since advice and assistance with divorce itself could be restricted to cases involving procedural difficulties such as service, obtaining and translating foreign marriage certificates. There would, almost certainly be substantial indirect savings, since no fault divorce could reasonably be expected to have a knock on effect, in terms of reducing tensions, emotional upset and unreasonableness in connection with issues relating to finances and children making it more likely that these issues will be resolved without litigation.

3.4 Various "pinch points" in the Family Justice system, notably with CAFCASS and HMCS, could be addressed. These would likewise lead to cases being dealt with more expeditiously and so saving money.

3.5 These proposals, together with many others, are currently under consideration by the Family Justice Review, and this highlights the importance of the government waiting for their final report, due August 2011 before considering changes which affect legal aid in family proceedings (see paragraph 4.1 below, in which we develop this point further).

3.6 In the longer term, and in the context particularly of public law proceedings, significant improvements in social work practice (as presently being considered by the Munro review) will themselves result in substantial savings to the public law part of the legal aid family budget.

4. What are the implications of the government's proposals?

In responding on this point, we will concentrate on what we perceive to be the most serious consequences of the proposals namely:

The fact that these proposals, so far as they affect family law, cut across the work and independence of the Family Justice Review;

The implications of picking out a "domestic violence" component in private law family cases, and providing that cases with this component are to be eligible for public funding whilst other cases are not, and the implications of taking other cases out of scope altogether;

The impact of an increase in litigants in person;

The impact of introducing a single telephone gateway;

The resultant increase, rather than decrease, in acrimony and litigation.

4.1 The fact that these proposals, so far as they affect family law, cut across the work and independence of the Family Justice Review

4.1.1 The previous Administration announced on 20 January 2010 that a fundamental review of the family justice system would be undertaken and set out its terms of reference. The present Administration decided to proceed with that review, and in June 2010 the Chair of the Family Justice Review Panel, David Norgrove, launched a formal call for evidence.[132] Responses were to be submitted by 30 September 2010, and by that date there was a clear understanding that an interim report would be produced by the Review Panel around March 2011 and a final report around August 2011.

4.1.2 This is a major and fundamental review. It is the most thoroughgoing examination of the family justice system since the work which led up to the enactment of the Children Act 1989, more than twenty years ago. We have contributed fully to that review, by giving oral and written evidence, attending workshops, and assisting with a project to analyse the day to day work of lawyers within the family justice system.

4.1.3 In providing information to representative bodies as to where the Review Panel had got to in their thinking, in the middle of November 2010, Panel members made it clear that they expected to receive critical feedback in respect of their interim report and would not draw final conclusions until they prepared their final report in August 2011.

4.1.4 Accordingly we suggest that it is wholly inappropriate for the government to be setting out proposals at this stage which fundamentally affect entitlement to public funding in family law cases. The proper time to do that, we say, is once it has been possible to digest the final conclusions of the Family Justice Review Panel, and not before. To do otherwise is contrary to the government's Code of Practice on Consultation.[133]

4.1.5 This issue was raised with the Minister with responsibility for Legal Aid, Jonathan Djanogly at the All Party Parliamentary Group meeting on Legal Aid held on 24 November 2010. How, he was asked, was the feedback to representative bodies referred to above to be squared with the Government's stated intention to respond on the Green Paper during April 2011, so far as the family proposals were concerned? We were, and remain, wholly unconvinced by the Minister's answer to the effect that the team dealing with the Green Paper and the Family Justice Review Panel were not operating in silos, but were looking at what the other team was doing. That is, of course, to be expected. However, we have no reason whatsoever to doubt the Review Panel members' integrity, and their stated position above, as to the keeping of an open mind until they have considered feedback to their interim report, is clearly not compatible with the making of decisions as to the way forward by the Minister in April 2010.

4.2 The implications of picking out a "domestic violence" component in private law family cases, and providing that cases with this component are to be eligible for public funding whilst other cases are not, and the implications of taking other cases out of scope altogether

4.2.1 No definition of what is meant by "domestic violence" is provided anywhere in the Green Paper, although reference is made (in paragraph 4.64) to "those in abusive relationships" needing "assistance in tackling their situation". It is unclear what is to be encompassed within "abusive relationships". If it is only physical violence, then that would run counter to the research evidence as to the scope and definition of abuse and, indeed, to the impact of other types of abuse on the children of the family. It also runs counter to the definition of domestic violence which was stated as recently as 2008 to be the ACPO, Crown Prosecution Service and government's definition of that term.[134] It would also run counter to the Legal Services Commission's current policy on funding in this type of case.[135]

4.2.2 Nor is it clear whether, in deciding to make domestic violence applications a portal to keeping other types of family application in scope, the framers of these proposals have kept in mind the distinction between "an order of the court" obtained by an applicant, and "a undertaking to the court" given by the respondent. Many injunction applications relating to domestic violence are resolved not by an order of the court, but by the respondent giving an undertaking as to his future conduct (which protects the applicant, but involves no finding of the court as to whether or not the respondent has been responsible for the behaviour complained of). Resolution by way of an undertaking accordingly has the well understood advantages of shortening proceedings, saving money, and reducing levels of tension and discord within the family. If it is intended that an order of the court is necessary, then this will have the following counter-productive and unintended consequences:

Most cases will be contested by respondents in order to limit the adverse consequences upon them of findings in relation (particularly) to arrangements for the division of parenting time;

The Legal Aid fund will accordingly have to meet the much higher costs of contested domestic violence proceedings for the applicants, and there will be knock-on effects on other agencies;[136]

It is highly probable that many respondents will be able to demonstrate entitlement to public funding to meet the allegations against them.

4.2.3 There is a clear risk that, if alleging domestic violence is to be treated as a exclusive gateway to eligibility for public funding in related cases, then there will be an increase in allegations which are ultimately found to be false or exaggerated. There is also likely to be the putting forward of abusive acts which would not have been argued previously in order to obtain funding. There are very few relationship breakdowns which involve no abuse but detailing these will invariably focus the attention of the parties on past conflict rather than the present situation where judges and lawyers try to encourage parties to consider the children and move forward to arrange their future.

4.2.4 Paragraph 4.208 of the Green Paper quotes recent research[137] as "demonstrating" that "in the vast majority of cases parents agreed contact arrangements informally without resort to the courts". This is a wholly misleading picture of the research referred to, as has recently been described.[138] and the research in fact shows that 74% of those who had been able to reach an agreement without a court order, explained that they had in fact done so with the advice and assistance of lawyers, judges, CAFCASS officers and other members of the existing family justice community.

4.2.5 Paragraph 4.209 of the Green Paper is even more misleading. The assertion that "the vast majority of children had the contact arrangement with their non-resident parent arranged informally without the assistance of the Courts, lawyers or mediators" is completely wrong. The research referred to leads to the entirely opposite conclusion (as referred to in paragraph 4.2.4 above), namely that the great majority of these arrangements were made as a result of engaging with the present family justice system.

4.2.6 Paragraph 4.209 of the Green Paper goes on to express concern "that the provision of legal aid in this area is creating unnecessary litigation and encouraging long, drawn-out and acrimonious cases which can have a significant impact on the long-term well-being of any children involved". As we have explained in paragraphs 4.2.4 and 4.2.5 above, this conclusion is founded on a completely erroneous presentation of the available research. The overwhelming majority of those involved in the Family Justice system deplore those cases (which do indeed exist) which are needlessly prolonged, acrimonious and damaging to the children concerned. However, these tend to be either privately funded cases or cases involving litigants in person. The real issue is accordingly robust case management by the court. To the extent that public funding is involved in such cases, then existing rules as to scope of funding, costs limit and reporting duties need to be more rigorously applied.[139] Additionally, there are professional conduct rules and codes of practice which exist to curb abuses in this area, and which likewise need to be more rigorously applied.[140]

4.2.7 As we state above, the research referred to in paragraphs 4.208 and 4.209 has been quite erroneously presented. But in any event, we do not understand the assumption, implicit in paragraph 4.209 of the Green Paper that, because some proportion of children involved in relationship breakdown do not have their contact arrangements made by a court, this means that the parents of the remaining cohort should have no recourse at all to a court, and that, as stated in paragraph 4.210: "people should take responsibility for resolving such issues themselves". Whilst there may be scope for simplifying procedures, improving judicial case management of such cases, and for "fast-tracking" the simpler kind of disputes, this approach appears to us to ignore a number of significant issues.

4.2.8 First, the fact that some people manage to resolve these issues without applying to the court ought not to be regarded as a sign that the court is redundant, but rather an encouragement to settle matters where at all possible in order to avoid having to litigate. Going to court ought indeed to be seen as a last resort in the simpler type of case.

4.2.9 There are, however, many private law children and family cases which are not at all simple, and where it would be quite unreasonable to expect people to sort things out for themselves. Some examples are:

Domestic abduction (as opposed to international child abduction). Where a parent, who thinks they have agreed a pattern with contact with their former partner, hands over the child only to find that the child is not returned, but taken to a secret address, perhaps in another part of the country. Are they to be expected to apply for an order without legal assistance in these circumstances? How are they to trace the whereabouts of the child, and serve court process on the former partner? Are they to do this as a litigant in person?

Child alleges sexual or physical abuse. Where contact stops following an allegation by the other parent to the effect that the child has complained she has been sexually or physically abused by, let us say, the father. The local authority conduct a brief enquiry, but as the mother is not letting the child see her father, conclude that the child is not at risk and decline themselves to intervene. In a case of a malicious allegation, what is the father to do? How is he to navigate his way through the many difficulties which such a set of circumstances throws up? In the case of a well-founded allegation, how is the mother and the child to be protected against privately funded litigation by the father (there is no domestic violence alleged, and so the mother will not be entitled, under the present proposals, to public funding.[141]

Removal from the jurisdiction. Where a parent seeks to remove a child from the jurisdiction to settle perhaps on the other side of the world. What is the scope here for a mediated settlement?

Inaction by the local authority. Where a parent who is exercising staying contact learns from police of the arrest of the parent with a residence order in connection with serious allegations, but the local authority does not step in, and leaves it to that parent to apply to the court for an urgent variation hearing.

4.2.10 Even types of case which, on the face of it, seem rather more straightforward, complications frequently and (which is significant) unpredictably arise. For example:

Deliberate and long term obstruction of a relationship with the other parent. This might be by way of frequent moves of home and school (which in itself is potentially harmful to the child). This might be by development of illness behaviour within the child. This might be by emotional manipulation of the child, so as to avoid contact taking place or by other behaviours including so-called "parental alienation syndrome".

Changing a child's name. This is frequently attempted with a view to obliterating a part of the child's identity, usually the paternal and/or cultural identity.

Cases involving undiagnosed mental health conditions and personality disorder traits in one or both of the parents.

Cases where one or more parents is from an ethnic or cultural minority group.

4.2.11 The proposals seriously underestimate the impact on children's welfare of the removal of skilled advice. The most comprehensive research available clearly indicates that almost half of all private law family cases involve allegations of serious abuse.[142]

4.2.12 If legal aid ceases to be available for these harder sorts of case, or if, worse still, private family law cases were to be removed altogether from the jurisdiction of courts, we anticipate that the law would fall into disrepute and that people would resort to all manner of unlawful and antisocial acts in order to obtain, as they saw it, redress, including violence and kidnapping. This is indeed flagged up as a possible consequence in the relevant Impact Assessment.[143] The other side of the coin is that parents will give up in the face of obstruction from the other parent and lack of legal guidance so that children will be more likely to lose one parent.

4.2.13 Since the great majority of primary carers of children are women, these proposals (as is acknowledged) will have a disproportionate effect on women. The fact that they are primary carers does not seem to have been taken into account in reaching the conclusion that this is an area in which the litigant has the ability, and can be left, to present their own case.

4.3 The impact of an increase in litigants in person

4.3.1 We consider that this will be a major consequence of the proposals in the Green Paper, with devastating consequences both for the proper administration of justice, and children who are necessarily affected. It will result in increased cost to many agencies and government departments.

4.3.2 It is apparent that the impact has not been properly researched. We note from paragraph 4.269 of the Green Paper that the Ministry of Justice is undertaking further research into this area. We are not aware of anyone or any academic body having been so commissioned. We are, however, aware that on 14 January 2011, the Ministry of Justice requested assistance in identifying the relevant literature.[144] This appears to be a belated attempt to identify what research has already been carried out, rather than the undertaking of further research. We will evidently have no opportunity to comment on this prior to the closing date for this consultation. This literature review should surely have been carried out before the consultation was launched. It is, in our view, essential that comprehensive research is carried out into the likely impact of an increase in the number of litigants in person on courts and other agencies before any further steps are taken by the government which will impact significantly on the number of litigants in person.

4.3.3 We note the reference, in paragraph 4.268, to the research carried out in 2005 by Professor Richard Moorhead and Mark Sefton for the DCA on Litigants in Person: Unrepresented Litigants in First Instance Proceedings, and we note the comment in that paragraph that this research "did not find a significant difference between cases conducted by a litigant-in-person and those in which clients were represented by lawyers, in terms of court time". We have looked carefully at this piece of research, and do not agree with the authors of the Green Paper's summary of the research findings on that point. The researchers did find a significant difference in all areas of family law proceedings they looked at, apart from divorce petitions. There was a slight difference in adoption applications,[145] and a marked difference in ancillary relief applications,[146] In "Children Act cases" (which appears to have included children and finance cases) the differences are described as "statistically significant",[147] whilst for injunctions the researchers state that "the differences were starker".[148]

4.3.4 As to an increase in the numbers of litigants in person, the researchers observed that "There is no quantitative data available to judge the situation in family courts".[149] We think that the MoJ should have made it a priority to research this aspect, and the further impact of these proposed changes, before making changes which are likely to have such a detrimental impact of the administration of justice;

4.3.5 Quite apart from the 2005 research, there is an abundance of evidence from the judiciary and lawyers who daily grapple with the effects of cases involving litigants in person. The effects are hinted at in the 2005 research[150] but any practitioner or judge will confirm the major impact on court hearing times and length of cases which are directly attributable to lack of representation by lawyers.

4.3.6 We have no doubt that the effect of the Green Paper proposals, if implemented, will be a steep rise in the numbers of litigants in person, with consequential and severe detriment to court listing arrangements.[151] We do not see how, in the current economic climate, with court closures, and reduced judicial sitting days the system will cope with a significant rise in litigants in person. There must be a real risk that the quality of judicial decision making will be affected, both because of the pressure of time, and the poor quality of evidence presented.

4.3.7 There will also be a knock-on effect on other cases, and in particular an increase in the severe delays in finalising care proceedings and other family cases, as a result of reduced judicial availability.

4.3.8 Paragraph 4.105 of the Green Paper proposes that Legal Help and Representation for children who are separately represented under rule 9.2A or rule 9.5 of the Family Proceedings Rules 1991 will remain. We support that, but point out that an increase in the number of such children's parents who are litigants in person will exacerbate all the difficulties referred to above.[152]

4.4 The impact of introducing a single telephone gateway

4.4.1 These proposals have not been properly researched, or the implications thought through. They will result in a poorer service, an increase in child protection issues and they will significantly add to costs in the long run. In our view the issues raised are sufficiently important to merit proper research, followed by a separate consultation, and no changes ought to be introduced until full consultation and evaluation has taken place.

4.4.2 First, we do not believe there to be a robust evidence base for believing that the quality of advice services provided through a telephone helpline is adequate, let alone a proper substitute for face to face advice in family work.[153] In particular we are unaware of:

any independent research verifying that the services provided through the Community Legal Advice telephone service are indeed an adequate substitute for face to face advice from providers;

the results of any quality control testing in relation to advice given through this means (ie by some peer review mechanism which could compare the results with face to face provider's files); and

how many cases closed by the operator service were telephone calls from people who subsequently contacted a face to face provider (which might be an indication that the telephone helpline service had not resolved the particular problem, or that it did not meet their particular needs).[154]

4.4.3 In our experience, the vast majority of adults who seek family advice from our members are distressed or in emotional turmoil. Many have mental health problems, personality disorder traits, learning difficulties and for many of them English is not their first language. The issues they want to discuss are of a painful and sensitive nature and even in a face to face interview it can take some persuasion for them to be able to explain the detail of their problem. Frequently they have a lot of correspondence or court papers. We consider a face to face interview to be essential where any of the following factors are present:

Language difficulties;

Learning difficulties (which are generally more apparent on face to face interview in any event);

Mental health issues;

Documents in existence which the person seeking advice thinks may be relevant to the problem in question;

Any aspect which indicates that there may be a child protection issue;

Immediacy of risk to caller and/or children involved;

Caller ambivalent as to whether a victim of domestic violence;

Caller is under legal disability (including a young person)

Caller is unable to read and therefore cannot provide the advisor with the details of documents, in order to assess whether they might be relevant.

4.4.4 We note that the Legal Services Commission are currently researching whether case outcomes are dependent on the channel used. There is no indication as to when this research will be completed, how it is being undertaken, and whether it will be made public. We think it essential to evaluate the results of such research before designing a new scheme of the type envisaged.

4.4.5 In terms of relative cost we note that it is asserted that the average cost of cases dealt with through the helpline is more than 45% less than the cost of the equivalent face to face service.[155] However, certainly so far as family cases are concerned, this appears to relate only to one-off pieces of advice given over the telephone, where it is suggested that the net cost is £51.95, as opposed to the net cost of fixed fee level 1 face to face advice of £86.66.[156]

4.4.6 There are a number of issues which arise here. First, there is the question raised above of qualitative difference. Second, since advice under the pilot scheme was evidently paid for on an hourly rate,[157] whereas the face to face advice under level 1 is delivered on a fixed fee basis, this is not a proper comparison. It is, in effect, an exercise in comparison between apples and pears. Third, face to face providers, both in terms of compliance with the Specialist Quality Mark and requirements of the Solicitors Regulation Authority are required, as part of their service, to send a client engagement letter dealing with various matters including a summary of the advice given to date and the steps now to be taken, and to keep detailed attendance notes. This reflects the understanding that a client with a problem is very likely to be unable to take in verbal advice even face to face and a letter will ensure that the advice is available to them in a permanent form. This does not appear to have been the case with the telephone pilot work.[158]

4.4.7 In terms of client satisfaction, we note that the Legal Services Commission conducted a survey, in the summer of 2008, of approximately 50 clients who were dealt with by a specialist adviser under the telephone pilot, and approximately the same number who had been referred by the telephone service to a face to face provider.[159] Presumably, as 93% of the former cases were one-off pieces of advice only[160] almost all the former cases were regarded as straightforward. It is unclear whether the latter group were regarded as unsuitable for telephone advice because of evident complication. It is difficult, we would argue, to draw any conclusions on the basis of a small sample which appears to have involved comparison of groups who may have had very different case profiles, and some of the response data is, on any basis, quite puzzling.[161]

4.4.8 We fully accept that one of the frustrations which potential clients have, and which makes the suggestion of a telephone gateway/referral system superficially attractive, is the difficulty often experienced in finding a solicitor who has, in fact, the capacity to take the client on. However, that is primarily a by-product of the LSC's system of allocating and rationing "New Matter Starts". Not only can a provider which has run out of matter starts not help the potential client—that provider cannot even suggest who might be in a position to help, since, despite repeated requests, the LSC has not been able to make available information about which providers have run out, and which still have capacity, in any given procurement area.

4.4.9 Quite apart from issues relating to the adequacy of service which the client would receive, we consider that there are many practical issues which need to be resolved. Some examples are:

How are conflicts of interest to be dealt with? How, indeed, are they currently dealt with, if at all?

The undesirability of permitting referral for specialist advice to the screening agency itself;

What a fair allocation scheme would look like, and how, in practice, abuses would be prevented;

What right there would be for a client to seek referral to a solicitor of choice, and how that would in practice work;

How the LSC, and indeed providers, would deal with referral of a client who is already seeing a provider with regard to an existing case.[162]

4.5 The resultant increase, rather than decrease, in acrimony and litigation

4.5.1 That this is the inevitable result of the proposed changes will be apparent from a careful reading of paragraphs 4.1 to 4.4 above.

4.5.2 Greater use of telephone advice, as opposed to face to face advice, will result in poorer quality of advice, and more persons seeking to resolve issues through court proceedings, not less.

4.5.3 Since such proceedings will not be in scope, for legal aid purposes, unless "domestic violence" can be proved to be present through a court order or pending proceedings, there will be an incentive for applicants to litigate this issue. There will be powerful incentives for respondents to defend them. There will be many more litigants in person. They will not have the benefit of advice as to what is reasonable or achievable. They will clog up the court lists, and their cases will take more time to resolve and this will have a knock-on effect on other cases, including public law children's cases. As public funding will not be available for urgent and difficult cases such as child abduction within the United Kingdom, persons affected will be encouraged to take the law into their own hands, with the inevitable consequence that there will be more breaches of the peace, and the law will be brought into disrepute.

4.5.4 These proposals, we say, will have precisely the opposite effect in practice from what is intended.

January 2010

128 At a meeting of the Civil Contracts Consultative Group held at the Legal Services Commission. Back

129 In its 2010 tender round, and consultation leading up to it, the Legal Services Commission operated, it will be recalled, on the basis that there needed to be a minimum of five providers in each procurement area. In practice, and particularly where a procurement area covers a large geographical area, five is not enough to provide reasonable cover. Back

130 IA MoJ 028, at page 16 Back

131 46,000 hours p.a., according to a member of the Family Justice Review panel, when providing feedback to the Family Committee of the Law Society on 18 November 2010. Back

132 "Call for Evidence", Family Justice Review, June 2010 Back

133 See HM Government's Code of Practice on Consultation, July 2008: Criterion 1 "When to consult", paragraph 1.2: "It is important that consultation takes place when the Government is ready to put sufficient information into the public domain to enable an effective and informed dialogue on the issues being consulted on". Back

134 Guidance on investigating domestic abuse, produced on behalf of the Association of Chief Police Officers by the National Policing Improvement Agency, 2008, Preface, at page 7: "The shared ACPO, Crown Prosecution Service (CPS) and government definition of domestic violence is:
'any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults, aged 18 and over, who are or have been intimate partners or family members, regardless of gender and sexuality.' (Family members are defined as mother, father, son, daughter, brother, sister and grandparents, whether directly related, in-laws or step-family.)" Back

135 Volume 3 Part C (20.32 A paragraph 2) of the LSC Manual states that "funding is not limited to persons who have suffered actual physical violence". Back

136 Eg police authorities which will face a higher level of applications for disclosure. Back

137 the Omnibus Survey Report No. 38: Non-resident parental contact, 2007-08: A report on research using the National Statistics Omnibus Survey, produced on behalf of the Ministry of Justice and the Department for Children, Schools and Families (Lader, D)(2008)(Office for National Statistics) Back