Written evidence from Professor Judith
Masson, University of Bristol (FC 02)
THE IMPACT ON COURT PROCEEDINGS AND ACCESS
TO JUSTICE OF RECENT AND PROPOSED CHANGES TO LEGAL AID.
SUMMARY
Evidence from ESRC Study:Parent's Representation
in Care Proceedings on the impact of the legal aid changes
on solicitors in care proceedings, parent's representation and
court proceedings.
INTRODUCTION
1. am Professor of Socio-legal Studies at
University of Bristol, School of Law. My research focuses
on the operation of family law in practice. For the last 15 years
the bulk of my research has related to public law children with
studies of children's representation by solicitors and guardians,
emergency intervention by police and local authority social workers,
the operation of care proceedings, including legal aid costings
and parents' representation in care proceedings. I am also author
of the child law sections of Cretney's Principles of Family
Law, London: Sweet and Maxwell (8th ed 2008) and numerous
academic articles on the Children Act 1989. I am currently academic
member of the Family Justice Council.
RESEARCH
2. As part of the Care Profiling Study,
commissioned by the Department of Constitutional Affairs and the
Department of Children, Schools and Families in 2006 my team obtained
details of the legal aid bills for a sample of 750 parties to
care proceedings. This included bills for all the legally aided
parties in 155 cases, making it possible for the first time to
examine the total costs to legal aid of care cases. A paper based
on this work and modelling the costs of these cases against the
fees paid under the 2007 fixed fee scheme has been published:
J. Masson, "Controlling costs and maintaining services—the
reform of legal aid fees for care proceedings" [2008] Child
and Family Law Quarterly 425. This paper indicated that in
a substantial proportion of cases lawyers would make a loss because
their fees would exceed the fixed fee but not reach the level
of the "escape", which for care cases is 2x the fixed
fee.
3. This study has been followed up as part
of a qualitative study, funded by the ESRC of parent's representation
in care proceedings. The Parent's Representation Study (2008-2010),
directed by my colleague Julia Pearce, involved observation of
court hearings (109) and pre-hearing discussion with clients and
negotiation between lawyers, and interviews with 61 practitioners
including solicitors in private practice (41) and barristers (8).
The sample included 16 case studies which were tracked from early
in the proceedings (generally soon after the first hearing) to
their conclusion (or the end of the study in May 2010). Interviews
and observations were conducted between July 2008 and April 2010,
this study therefore provides up to date information about the
impact of the legal aid changes before the introduction
of the new legal aid contract and the Family Advocacy System.
A paper on this research was presented to the Legal Services Research
Conference in June 2010. The full report of the research will
be published in the autumn of 2010 on the websites University
of Bristol, School of Law and website and ESRC Society Today.
4. Between 2008 and 2009 there was a substantial
fluctuation in the numbers of new care applications before the
courts. There was a substantial decline of applications from April
to November 2008; lawyers were concerned about the volume of work
available to them. Thereafter there was a substantial and sustained
rise in applications. By the end of the fieldwork solicitors were
expressing concern about managing their workloads and preparing
the larger number of cases. Their concerns echo those of local
authorities who were also struggling to manage both social work
and legal issues with a large number of cases (ADCS 2010; Macleod
et al 2010).
SOLICITORS IN
CARE PROCEEDINGS
5. A specialism in care proceedings started
to develop in the 1980s when the Law Society established its first
specialist panel for children's lawyers. Children's guardians
and courts were expected only to appoint members of the children
panel to act for children, an arrangement which was followed in
the vast majority of cases. Non panel members acted for parents,
and this was the usual route for obtaining the required experience
for panel membership. It is now possible to be a panel member
as a parent's representative and a few solicitors have done so.
Until the introduction of fixed fees members of the children panel
were paid for legal aid work at an enhanced rate, at least 15%
above the standard fee rate. Under the October 2007 scheme enhanced
fees the standard fees were abolished and the savings applied
to the fixed fee rates; there ceased to be a fees reason for panel
membership but acting for children still depends on panel membership.
During interviews for the Parent's Representation Study
we spoke to a very few solicitors who were actively working towards
panel membership and some others who did not feel the need to
do so because there were already one or more panel members in
their firm. It is unclear whether the Panel can be sustained without
a financial incentive to join.
6. There was an historic problem of poor
quality work being done for parent in care proceedings by non-specialist
solicitors. This has more or less disappeared with legal aid franchising;
these cases can only be taken by firms with the relevant legal
aid franchise. Almost all work for solicitors in care proceedings
is publicly funded; having a legal aid contract for this work
is crucial. The only non legally aided work in care cases is acting
for relatives who cannot satisfy the means-test for legal aid
or undertaking agency work for local authorities. Few relatives
seek to participate in proceedings without legal aid and local
authorities more commonly use in house solicitors or rely on barristers.
Those solicitors we interviewed who had done agency work for local
authorities found it unattractive and would not consider doing
it in future.
7. Although there are some large firms or
firms with large public law children departments this work is
more commonly done in smaller firms, including specialist firms
which practise exclusively in family law and "high street"
firms which do this work as part of a mixed practice, sometimes
combining it with criminal law. It follows that the firms doing
public law children work are heavily dependent on income from
legal aid.
8. The solicitors interviewed for the Parent's
Representation Study were generally experienced in care work
and enthusiastic about doing it. They felt that this was work
where they could "make a difference" and many enjoyed
the mix of work with clients and advocacy which it provided. The
Study identified 3 models of practice amongst solicitors undertaking
care work:- 1) Solicitors who saw clients but relied extensively
on counsel for court work; 2) solicitors who undertook the complete
handling of a case, including almost all advocacy. This model
has its roots in the undertaking solicitors are required to give
for personal conduct of cases where they act for children; 3)
solicitors whose practice fitted between these two extremes who
tended to handle uncontested directions hearings but instructed
counsel for contested matters, longer hearings and final hearings.
There was no suggestion from interviewees that any particular
model was more or less profitable to them. However, the change
to fixed fees made some solicitors concerned to earn fees for
advocacy which were still paid by time.
LEGAL AID
CHANGES INTRODUCED
IN OCTOBER
2007
9. The fixed fee system was based on the
"swings and roundabouts" approach to payment where over-remuneration
on simple cases would balance under-remuneration where the work
exceeded the fixed fee but did not "escape" to be paid
by time and line. Fixed fees posed a challenge for firms for the
following reasons:-
- Solicitors had limited control over the amount
of work done on a case because this was determined by the actions
of other parties, including the local authority, and the approach
of the court.
- This was the first area for fixed fees in family
law.
- Although firms relied on this work it was generally
low volume with solicitors working on 20-30 cases which average
a duration of 1 year in proceedings.
- Firms lacked systems for monitoring expenditure
against the fixed fee (as opposed to time) as cases progressed
and relied on costs draftsmen to prepare bills.
- Clients who were unreliable and extremely distressed
made demands on lawyer's time which were difficult to control.
- The specialist nature of the work meant that
there had been little development of the use of paralegals.
10. The introduction of the Scheme was met with
comments from the profession that solicitors would be unwilling
to do the work for the fees provided. This was not reflected in
our interviews; fee rates compared positively with legal aid for
other family work which might also require a contribution. In
only one of the 4 areas where the research took place could solicitors
identify any firms which had given up this area of work. Conversely,
solicitors noted that there was a continuing supply of work which
they wanted to do. However, work had to be economic for law firms.
Partners commented that they were sometimes under pressure from
fellow partners in relation to the low level of fees from legal
aid work. Similarly, some assistant solicitors felt under pressure
to take on more cases to keep up the firm's fee income.
11. Fixed fees produced a variety of responses
in firms the most obvious of which was to increase the number
of cases taken. Where solicitors did their own advocacy there
was also a trend for firm lawyers to "double up" that
is for a single lawyer from a firm to handle all matters before
the court at a single session. This could mean that a lawyer was
acting in two or three care cases in a single morning, negotiating
with other lawyers, each of whom was also acting in more than
one case. Given that most care cases involve two or three lawyers
in addition to the local authority lawyer this could pose difficulties
for courts in getting through the list. Magistrates' legal advisers
commented on the negative impact for their work of this practice.
Increased volume of cases also appeared to be impacting adversely
on solicitors with interviewees and solicitors being observed
complaining of long hours and exhaustion and occasionally berating
themselves for having forgotten some case action required by the
court. It was also suggested that it would be more difficult to
recruit solicitors to do this work and to sustain the specialist
panel.
12. Other practices identified by solicitors
as ways of making the fixed fee system work included:
- Doing less extra work such as supporting clients.
- Using email rather than letters, and sending
the same email to all lawyers rather than writing individually.
- Making more use of junior staff (para-legals
or secretaries) including for interviewing clients.
- Increased (or decreased) use of counsel.
- Not attending court where counsel was instructed.
- Mason and Sherr found that Peer Reviewers auditing
legal aid files similarly identified these practice responses
to fixed fees (Mason and Sherr 2010).
13. Although solicitors recognised that certain
types of client were more likely to be profitable there was no
indication that solicitors selected clients on this basis. Rather
they took every client who approached them if they could manage
further work. The only clients who were generally not accepted
were those seeking to transfer from other solicitors. Both views
about dissatisfied clients and difficulties with transferring
legal aid were given as reasons for this. Also solicitors appeared
more reluctant to act for both parents. In the Care Profiling
Study in 31/386 cases the parents shared a solicitor throughout
the case, five more did so initially and two did so only at the
end. Solicitors explained their reluctance to act for both parties
on the possibility of conflicts of interest between the parents.
(Child protection cases frequently involve domestic violence).
Fixed fees made it more difficult to find a solicitor willing
to take a transferred client so it was best to assume there was
conflict in every case.
14. Overall, it appeared that work in these cases
was becoming less personal; some clients were not seeing their
own solicitor regularly at court and the opportunity to establish
a trusting relationship between lawyer and client was reduced.
This is likely to impact of the parent client's willingness to
accept "unpalatable" advice, particularly not to contest
"hopeless" cases. Solicitors are able to get some clients
to accept that there is no alternative to their child becoming
subject to a care order. Barristers were also used by solicitors
specifically to deliver "difficult" advice. There are
no other external mechanisms which are used to avoid contested
hearings even after the introduction of the PLO. Contested cases
are generally more costly and are more likely to escape the controls
imposed by fixed fees. They are also more costly for local authorities
and the court service.
LEGAL AID
CHANGES FROM
OCTOBER 2010
15. There are two further changes which will
impact on legal representation in care proceedings: - 1) the new
legal aid contract which is reducing the number of firms doing
this work; and 2) the introduction of the Family Advocacy Scheme
which will enhance the rates for advocacy by solicitors but reduce
them for barristers (compared with the earlier scheme). Both these
changes are likely to strengthen the effects already seen, with
the remaining firms taking on more cases, and solicitors doing
more advocacy and acting in multiple cases. The reduced fees for
barristers may make some less willing to take on this work; both
barristers and solicitors expected that some barristers would
stop taking care work. However, was clear from the research that
very junior barristers (less than 5 years call) who wanted to
specialise in this work could provide a good service for clients
and the courts, in some cases the service was better than that
provided by longer serving but less specialist barristers, who
are most likely to cease taking legal aid work.
REFERENCES
Association of Directors of Children's Services (2010)
Safeguarding pressures project London: ADCS
Mason, M and Sherr, A (2010) "Quality in a cold
climate?" Paper given to the 8th Legal Services Research
Conference, Cambridge
Macleod, S, Hart, R, Jeffes, J and Wilkin, A (2010)
The Impact of the Baby Peter Case on Applications for Care
Orders (LGA Research Report) Slough: NFER.
November 2010
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