House of Commons - Justice Committee

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

Written evidence from the Family Law Bar Association (AJ 16)

WHO WE ARE

1. The Family Law Bar Association (FLBA) represents the interests of approximately 2,300 barristers nationally who specialise in family law.

2. The overwhelming majority of work carried out by the Family Bar can be summarised as follows:

(a) State intervention in the care of children ("public law").

(b) Private individuals' disputes concerning family life, in particular the care of children ("private law").

3. In all areas, the Family Bar works with those, and for those, who are among the poor and increasingly fractured society in which we live. Many of our clients are vulnerable—emotionally, socially, and financially. Many are victims of violence, or are perpetrators whose need for representation and advice is just as great. Many have lives blighted by alcoholism or drug abuse. Many of our clients do not have English as a first language; many speak no English at all—vital instructions are communicated through interpreters. The work is challenging, yet rewarding.

4. The FLBA wishes to address some of the questions posed by the Justice Committee as follows:

INTRODUCTION

5. On 15 November 2010, the Ministry of Justice launched Green Papers on "Proposals for the Reform of Legal Aid in England and Wales" and "Proposals for Reform of Civil Litigation Funding and costs".

6. We concentrate on some of the proposals in the Green Paper "Proposals for the Reform of Legal Aid in England and Wales" ("the 2010 Green Paper") which affect family justice. The particular proposals to which we make reference here are as follows:

(a) [§4.215] All private law children cases and family cases (except where domestic violence - undefined, but envisaged to involve physical harm - is present) will be excluded from the scope of legal aid.

(b) Legal aid in domestic violence cases will only be available to the alleged victim not to the alleged perpetrator (notwithstanding that at the point of the issue of proceedings for a protective injunction and possibly the simultaneous issue of Children Act 1989 and ancillary relief proceedings the allegations will be unproven).

(d) [§4.70] Legal aid is to be retained for family mediation in private law family cases, including private law children and family proceedings and ancillary relief proceedings. This will generally apply to cases where domestic violence is not present, but even in those cases where domestic violence is present, it is intended to offer support through family mediation.

(e) [§7.6] All fees paid under the civil and family legal aid scheme will be reduced by 10%.

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?

7. We address the impact on the number and quality of practitioners in family law.

8. Advocates who specialise in family law on public funds do not do this work for the money. It is vocational work. As Lord Justice Moses recently observed,[24] it is a "difficult and demanding jurisdiction"[25] in which to work.

9. In 2008, a study of the Family Bar was conducted by King's College.[26] This was to provide quantitative (statistical) evidence of the work undertaken by the Family Bar and to understand the role that legal aid plays in the income of the Family Bar. At the time the surveys went into the field, proposed cuts to the legal aid graduated fee system for the family work of the Bar had been proposed; the cuts were projected to be about 13%-14%.[27] This was the explicit basis on which barristers answered questions about their intentions.

10. Following this piece of research, in fact the Government consulted again[28] and further cuts to the budget were proposed under the Family Advocacy Scheme (yet to be implemented).

11. The results of the 2008 survey revealed that:

(a) In the event that no changes were made to the legal aid system, a quarter of family barristers were intending to change the way that they practise—mostly to reduce their reliance on legal aid.

(b) In the event that cuts of around 13%-14% were introduced, over 80% of barristers indicated their intention to change their practices. These were predominantly senior practitioners. For example, 40% of barristers over 16 years call intend to stop totally or reduce greatly the amount of legally aided public law final hearings that they undertake.

12. It can thus be reasonably predicted how the Family Bar will respond to the proposed further 10% cuts in legal aid remuneration; practitioners will cease doing legally aided work, and the fund of experience and talent acquired over many years will dissipate; junior practitioners will not be able to afford to replace them.

13. To set this in context—it should not be thought that family barristers doing publicly funded work are overpaid for what they do. Far from it. The King's College research revealed that family barristers work long anti-social hours, and their personal lives suffer considerable and constant disruption. Half of family barristers surveyed work more than 46 hours in a given week, with a quarter working more than 56 hours, 1 in 20 working more than 70 hours, and 1% working more than 83 hours. Specialist barristers work longer hours than generalists.

14. A quarter of family barristers have taxable profits lower than £44,000 a year from their practice at the Bar, median taxable profits are in the region of £66,000 a year. From this figure there needs to be deducted the barristers' clerks fees and contributions to chambers rent (often in the region of 20%), their pension contributions, their sickness and critical illness cover, their professional insurances, and all of their expenses of practice.

15. Female Black and Minority Ethnic (BME) barristers have disproportionately high dependence on legal aid, with 30% depending on legal aid for between 60% and 80% of their turnover, and a further 22% more than 80% of their turnover. White men are the least dependent on family legal aid for income.

16. The proposed changes will have a serious and irreversible effect on the number and quality of family barristers who offer services funded by legal aid.

The Government predicts that there will be 500,00 (sic) 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?

17. The Government proposes that many family private law disputes concerning children and post-divorce division of assets will be, or ought to be, resolved by way of mediation.

18. The FLBA recognises that mediated agreements and negotiated outcomes for children bring many advantages to parents who are wrestling with the difficulties of relationship breakdown. It is obviously highly desirable that arrangements are reached with the minimum of conflict and stress.

19. However, there are large numbers of cases which will not be capable of resolution by mediation. Indeed it will be wholly inappropriate to require parties to mediate in many cases (such as, for example, where either parent has mental illness, where there is a background of domestic violence or alleged child harm); and where there is a significant power imbalance between the parties, mediation becomes unworkable, and is potentially abusive.

20. There is a widely (though not universally) held view that mediation is by its very nature a voluntary process; the motivation and willingness of parties to negotiate and compromise is critical to the success of mediation. Compelled mediation has a poor prospect of success. It is reasonable to predict that many cases will still come to court after the failure of mediation.

21. Difficult cases which are not resolvable by mediation at present will be no more resolvable by mediation in the future, and will require court intervention. Yet it is in these difficult cases that the Government has proposed that parents will have to enter the court process unrepresented.

22. We reject the inference that legal aid is wasted in pursuing "lengthy and intractable family cases which may be resolved out of court if funding were not available", and that disputes are protracted "unnecessarily by having a lawyer paid for by legal aid" (§4.211). Only a very small percentage of children from separated parents have their futures decided by the courts, and those cases are by their very nature the intractably difficult cases which are incapable of resolution outside of the courts.

23. It is precisely these difficult cases which cannot be mediated, and where parties ought to have representation.

What action could the Government be taking on legal aid that is not included in the proposals (for example, on Very High Cost Cases)?

24. The FLBA makes no comment in this respect.

Do the proposals to implement the Jackson report recommendations on civil court funding and costs adequately reflect the contents of that report?

25. The FLBA makes no comment in this respect.

What are the implications of the Government's proposals?

26. We would like to address the implications of the proposals under two headings:

(a) Access to Justice.

(b) Impact on the Court System.

27. We turn first to consider Access to Justice:

Generally

Many parents in the throes of relationship/family breakdown suffer from learning disabilities, or mental ill-health, or have lives affected by abuse of drink or drugs, or do not speak English as a first language. Many people are from cultures where accessing a court would be uncommon, even unacceptable. Many of these people will be unable effectively to access a court, and equally unable to represent themselves before a family court in relation to issues concerning the upbringing of their children.
Many parents in the throes of relationship/family breakdown suffer acute anxiety, stress and depression; it is reasonable to predict that many of these people will be deterred from seeking relief through the courts if they know that they will have to represent themselves.
We believe that the inability or reluctance of parties to access the Family Court unrepresented will have significant implications for the safety and welfare of their children in that:
- non-resident parents may abandon genuine claims for contact (or increased contact) with their children;
- parents will hold back in expressing their concerns about the care or contact arrangements for their children (which may genuinely be adversely affecting the welfare of the children) because they cannot face embarking on litigation unrepresented; and
- cases which verge on the edge of child protection will go undetected.

In each situation, it is the children who suffer.

Domestic Violence

Under the 2010 Green Paper proposals, funding is deemed to be justified for the victims of domestic violence (§4.64) in injunction and associated proceedings. However, there is no definition anywhere in the 2010 Green Paper of the phrase "domestic violence"; the phrase appears to be narrowly construed as necessarily importing "physical harm" (see §4.67). It follows that large numbers of victimised women will not qualify for legal aid where they cannot demonstrate actual physical harm.
The concept of domestic violence as necessarily importing "physical harm" is out of step with current thinking:
- Women's Aid defines domestic violence "as physical, sexual, psychological or financial violence that takes place within an intimate or family-type relationship and that forms a pattern of coercive and controlling behaviour"; and
- the shared ACPO,[29] Crown Prosecution Service (CPS) and (we believed) the 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.)
The FLBA supports and encourages all initiatives—legislative and otherwise—to protect the victims of domestic violence (in its wider definition of "abuse"). However, proof of domestic violence as an act of physical harm is a crude and inapposite test for the grant of public funds. Moreover, it is widely acknowledged that domestic violence perpetrators obsessively exert power and control over their partners and also over their children; they often maintain control by seeking to ensure that their victims are too frightened or too ashamed to mention the abuse to anyone else or to flee from the family home.[30] We recognise that many women who fear domestic violence may not seek injunctive relief (it should not be overlooked that the perpetrator will usually make sure that there is no opportunity for the non-violent parent or the children to speak freely), but would nonetheless wish to have support in resolving issues concerning the children.
Under the 2010 Green Paper proposals, there will be an "inequality of arms" in cases involving domestic violence before the courts—where the alleged victim will be entitled to public funds, whereas the alleged perpetrator will not be so entitled. In this regard, there is an unfortunate anomaly in the proposals of the 2010 Green Paper, because although the Government "considers that those who are accused of criminal offences should be able to benefit from publicly funded legal assistance when they cannot afford to pay for their own representation, if the interests of justice require it" (§4.6), the same person is not entitled to legal aid to defend themselves in respect of allegations of criminal conduct (assault and associated offences representing domestic violence) in the family courts.
There is a real risk of a surge in the number of allegations, and possibly cross-allegations, of domestic violence in order to be able to qualify for public funds (see below—impact on the courts).

Rights of child

There is a worrying contradiction in the approach of the 2010 Green Paper on the assessment of the nature of rights involved [§2.27].[31] Can it be said on the one hand that all parties who face removal of children from the family should have legal aid (even if they have not had any interest in/contact with the child for many years), but that a father who is being unreasonably denied any contact, and therefore at risk of losing his relationship with his child, should not?
The 2010 Green Paper appears to be geared towards proportionately meeting the interests of the party seeking legal aid, as opposed to meeting the interests of the children involved in the proceedings. That should be the focus of the system.
The UN Convention on the Rights of the Child places an obligation on public authorities to prioritise the welfare of children but the 2010 Green Paper proposals appear to be failing to do so.

The section 37 cases

In a private law children case, if a Judge considers that serious child protection issues arise such that the threshold for a care or supervision order with respect to the child may be satisfied, the court may direct the appropriate authority to undertake an investigation of the child's circumstances (section 37 CA 1989).
At the same time as directing that section 37 investigation, the court may make an interim care order or an interim supervision order with respect to the child concerned (section 38). Under an interim care order, the Local Authority will acquire parental responsibility for the child which they can exercise in such a way as to determine how a parent exercises his/her own parental responsibility. The Local Authority can of course remove a child from the parental home under the interim care order.
In this way children can be removed into foster care by a Local Authority under court order made in proceedings in which the parents would not be entitled to legal aid and will have been unrepresented.

The Rule 9.5 cases

Where private law children cases raise issues of "significant difficulty", the Court may join the child to the proceedings as a party (this is done under Rule 9.5 of the Family Proceedings Rules 1991). These cases include cases:[32]
- Where there are serious allegations of physical, sexual or other abuse in relation to the child.
- Where there are complex medical or mental health issues to be determined or there are other unusually complex issues.
- Where there is an intractable dispute over residence or contact, including where all contact has ceased, or where there is irrational but implacable hostility to contact or where the child may be suffering harm associated with the contact dispute (see above).
- Where there are international complications outside child abduction, in particular where it may be necessary for there to be discussions with overseas authorities or a foreign court.
- Where there is a contested issue about blood testing.
These cases are invariably not suitable for mediation.
The 2010 Green Paper proposes that parents will remain ineligible for public funds for representation in these cases (even though the child will be represented).
The Courts will therefore have unrepresented litigants before them:
- Being required to marshal the relevant evidence in a case concerning physical or sexual abuse of a child, where there may be, for example, concurrent police involvement/investigations.
- Having to deal with (and cross-examine on) expert evidence relevant to serious allegations of physical or sexual harm of a child.
- Having to consider and deal with expert evidence relevant to the court practice of a foreign jurisdiction.
- With "mental health issues", who will be expected to represent themselves even though the "significant difficulty" envisaged in the case is precisely the fact that the parent has such a condition.

Abuse/29 Child homicides

The Committee should consider the report of Hilary Saunders into "Twenty-nine child homicides: Lessons still to be learnt on domestic violence and child protection". This is a review of cases in which children were killed while under contact or residence orders. While many of the deceased children were in families where there was a history of domestic abuse, in others there was not—simply an ex-partner's obsessively controlling behaviour (a characteristic feature of domestic violence); in another case there were concerns about the child's safety which were not picked up by the court.
One of the clear recommendations of the report was that "Legislation should require the courts to assess risk and to prioritise the safety of the child in all cases involving allegations of abuse, because there is always likely to be risk in contact disputes involving domestic violence."
Where unrepresented litigants appear before a Court a significantly greater onus falls on the Judge to investigate the case; the chances of the Judge failing to pick up undercurrents of abuse are high. "Inexpert, sometimes emotional, and procedurally naive litigants pose a number of ethical and managerial problems for judges."[33]

Sexual abuse

Among the most difficult cases in private law are cases where a parent alleges that another parent has sexually abused the child, their child. This allegation often involves detailed and expert evidence. Legal aid will not be available for the parents in these circumstances (see above).
We would want to draw the Committee's attention to an apparent anomaly in the 2010 Green Paper proposals. The Government intends to retain legal aid:
- "for money claims against both private individuals and public authorities where (i) they arise out of allegations of the abuse of a child or vulnerable adult; or (ii) they arise out of allegations of sexual assault. This provides legal aid for cases concerning, for example, allegations of abuse in local authority care, or in private educational or care institutions" (§4.56)
- … for an applicant in "a damages claim which arises out of the abuse of a child or vulnerable adult…" (§4.17)
- "We consider that money claims which arise out of allegations of the abuse of a child or vulnerable adult, or allegations of sexual assault, have an importance that goes beyond a simple money claim." (§4.57)
- "In the light of the importance of the issue at stake, the seriousness of the alleged harm suffered by the litigant, the likelihood of their vulnerability and the lack of sufficient alternative forms of assistance to justify the withdrawal of legal aid, it is our view that the provision of legal aid funding is justified. We propose that it is retained for these claims." (§4.58)
But note that where the same allegation is made in the context of family proceedings, and the issue is whether the alleged abuser should have contact with the alleged victim child, or whether a prohibited steps order should be considered to prevent the alleged perpetrator having contact, legal aid is not available for either parent to be represented on this vital issue.

Intractable contact cases

Intractable contact disputes are some of the most difficult private law cases which the Court has to resolve. The issues are stark—often involving a question of whether a parent should be able to see their child at all, and how to compel the parent with care to facilitate the contact. The authority of the Court is necessary.
As Baroness Hale said in Re G (Children) [2006] UKHL 43 [2006] 2 FLR 629 "Making contact happen and, even more importantly, making contact work is one of the most difficult and contentious challenges in the whole of family law" (emphasis added).
These cases are no more suitable for mediation than they are for resolution by the courts through unrepresented parties.

28. We turn now to consider the Impact on the Court system:

In cases involving family/relationship breakdown, there is a particular concern over cases where both parents will be unrepresented; the nature of the cases is such that parties have or have had an emotional connection to each other. This factor alone inhibits the parties' ability to view the issues objectively, look for compromise, consider settlement; this is likely to make cases longer.
It is likely that we will see an increase in the number of allegations of domestic violence by parties seeking entitlement to public funding/representation in domestic violence/children and ancillary relief proceedings. The focus on providing funding only for cases involving domestic violence is likely to lead to a proliferation of cross-allegations by respondents to Family Law Act applications as a means of obtaining public funding. This will inevitably lead to further pressure being placed on court resources due to the additional time required to hear such matters.
It is likely that there will be an increase in the number of contested hearings to determine allegations of domestic violence, given that entitlement to public funds in associated proceedings will depend on the alleged victim having obtained an "order" (the resolution of domestic violence proceedings by the giving of undertakings as to future conduct, a common and proportionate manner of dealing with many of these cases, would not appear to entitle the alleged victim to public funds in associated proceedings). This will have an impact on the legal aid budget and on the congestion in the family courts.
There has been no, or no effective, assessment of the impact on the Family Justice System of the proposals in the 2010 Green Paper to remove from scope the large number of private law children and ancillary relief claims.

2005 Research

The 2010 Green Paper seeks to draw on the 2005 Research to support the proposition that there is not a significant difference "in terms of court time" (§4.268) between a case in which a party is represented, and one in which he/she is not.
In fact the 2005 Research revealed the opposite in family cases:

"For family proceedings … where the applicant was unrepresented or where both parties were unrepresented, cases appeared to take significantly longer."[34] (emphasis added)

Moreover, cases involving litigants in person are (so the researchers found in 2005) less likely to be settled.[35] This plainly adds costs and delay to the court system.

Further research

It is acknowledged in the 2010 Green Paper that there will be an increase in the number of litigants in person in the family courts [§4.266]. It is acknowledged by the MoJ that this will "potentially" have consequences for the family justice system—"delays in proceedings, poorer outcomes for litigants (particularly when the opponent has legal representation), implications for the judiciary and costs for Her Majesty's Courts Service".
As practitioners, we advise that the "potential" consequences identified will in fact be the inevitable consequence of the proposals. It is our view that there will be
- a huge surge in the number of litigants in person in the family courts;
- an undoubted increase in the financial burden on HMCS;
- longer delays in the family court system;
- unfair burdens placed on the judges to manage the cases; and
- higher risk of the wrong outcomes being reached for children.
The Government has done no further or other research into the impact of the proposals on the Court System. Although the Government indicates that it is "undertaking further research into this area" [§4.269] we understand that this research is only just being "scoped". We have no further details.
It is a particular concern that the results of the proposed research will not be available until after the conclusion of the Consultation period (see §4.268-9).

December 2010

24 Law Society v LSC [2010] EWHC 2550 (Admin). Back

25 Ibid. §5. Back

26 This is a quantitative study of the work of the family bar in 2008, and the current functioning of the legal aid graduated fee system for barristers in family law cases. The study was commissioned in June 2008 by the Family Law Bar Association (FLBA), and was undertaken by researchers in the King's Institute for the Study of Public Policy (KISPP) at King's College London, from July 2008 to December 2008. Data was gathered through surveys of (i) chambers where any family work is undertaken, (ii) barristers who undertook any family work (whether publicly funded or privately paid) in the year to 30 August 2008 and (iii) all family work completed by barristers in England and Wales in a random week, known as the "Week-At-A-Glance". Back

27 "Reforming the Legal Aid Family Barrister Fee Scheme" Ministry of Justice/Legal Services Commission consultation on interim changes to the Family Graduated Fee Scheme": 18 June 2008. Back

28 Family Legal Aid Funding from 2010 Fee structures and funding changes that form the second phase of family reform (17 December 2008). Back

29 Guidance on Investigating domestic abuse: ACPO (2008). Back

30 Hilary Saunders report into Twenty-nine child homicides: Lessons still to be learnt on domestic violence and child protection (2004). Back

31 §2.27 "In civil and family legal aid, our aim is to introduce a targeted scheme which directs resources to those areas of law we judge to be priority. Our consideration of the justification for public funding for civil and family cases is based on an assessment of the nature of the rights involved, the client's ability to represent his or her own case and the availability of alternative assistance, remedies or funding." Back

32 See President's Practice Direction: Representation of Children in Family Proceedings (2004) reported at [2004] 1 FLR 1188. Back

33 Litigants in Person (2005 Research paper: DCA) 2/05, page 261. Back

34 2/05: page 257. Back