Operation of the Family Courts - Justice Committee Contents

Written evidence from Professor Judith Masson, University of Bristol (FC 02)



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.


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.


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).


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.


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.


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.


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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Prepared 14 July 2011