Written evidence from Jeni Styring, Children's
Panel Solicitor (FC 23)
THE OPERATION F THE FAMILY COURTS
INTRODUCTION
1. I am a solicitor in private practice who has
been undertaking family work since approximately 1985, mainly
dealing with public law work ie applications for care orders and
associated matters. I have been a member of the Children Panel
since its inception. I have since then worked on a daily basis
in the Family Courts.
2. I propose to make brief submissions in relation
to points (i) and (ii) in the call for evidence. Overall I want
the committee to be aware of the experience of a solicitor using
the family courts and the changes there have been over the years
and current problems in the system.
3. Regrettably these submissions are being prepared
at speed because of the pressure of work that we are currently
under. In addition the call for evidence and timescale was not
unfortunately as well publicised as perhaps it should have been
and many family solicitors are also preoccupied with the current
problems in the Legal Aid Tender.
(i) The effect of CAFCASS's operations on
court proceedings, and the impact on the courts of the sponsorship
of CAFCASS by the Department of Education
4. I will deal with the first part of the question
and in particular the involvement of CAFCASS in public law cases
as this is the area with which I am most familiar.
5. The dual system for representation of children
by a solicitor and Children's Guardian was working extremely well.
Originally the scheme was operated by local panels that had one
or two administrators. As soon as a case was notified they would
find a Guardian. Most of these were very experienced social workers
and were self employed. There was no delay and because the courts
appointed the solicitor and the panel the Guardian one found oneself
working with many different Guardians. This meant that the two
professionals could learn from each other and there were no "cosy
relationships". As a solicitor in London I worked with maybe
20 or 30 different Guardians and was dealing with work from all
over the capital.
6. This allows for a very fruitful exchange of
professional views and a melding of professional experience to
ensure that all aspects are covered in the interests of the child.
7. This system despite current difficulties should
not be abandoned.
8. Regrettably since CAFCASS took over from the
previous arrangements the operation of the system has gradually
got worse. This seemed to be initially and perhaps primarily because
of increased bureaucracy, and the increase of unnecessary levels
of administration and management. It is an unnecessarily "top
heavy" organisation.
9. Gradually the delays in appointment of a Guardian
have increased so that as the child's solicitor you are left to
handle the often sensitive and difficult initial stages of care
proceedings without the benefit of the Guardian's advice.
10. In the past most of the Guardians were self
employed, very experienced social work practitioners, who were
able to work efficiently and quickly home in on the issues but
also who could understand the problems faced by the Local Authority
because of their experience. This has changed so that now some
employed CAFCASS Guardians do not have the same level of expertise.
11. Regrettably the way CAFCASS has operated
has led to many of the most experienced self employed professionals
ceasing to work for CAFCSS for a number of reasons:
- work was not being given to them;
- bureaucratic attempts to limit or control the
way they did their work in unreasonable ways; and
- the insistence by management on what amounts
to " box ticking" rather than looking at the quality
of their work or the outcome for the child.
- This increased it seems since OFSTED became involved.
12. At present the situation is dire. In the
last year the operation of the system has been chaotic. Because
of the increase in care cases in most cases there has been no
Guardian for several weeks or months which can seriously affect
the outcome and progress of the case.
13. For example, I have had a case where no Guardian
was allocated from February until last week and it is coming up
for final hearing at the end of the month. This is by no means
a unique case.
14. I have had other cases where a Guardian has
been appointed late limiting the independent and investigative
role they rightly need to take such that in one case for example
because of pressure of work the Guardian supported the Local Authority
position without even meeting the parents.
15. In other cases the system where a duty advisor
attends court but cannot continue on the case also causes problems,
for example because they have done little more than skim through
what may be extensive papers or where they have advised a course
of action which the later appointed Guardian disagrees with.
16. In addition over the past few months the
system as to whether there is an adviser and their role appears
to change from week to week and between various courts!
17. The difficulties are compounded by the inexperience
and turn over of social work staff at many local authorities.
This causes delay both in bringing cases and once the cases are
before the courts. The evidence may be vague or poorly presented,
important documents missing. All this makes the role of the Guardian
crucial to ensure that correct decisions are made for the child
and at present the system is not delivering.
18. As a child's solicitor with so many years
experience I can do a lot but do not have the social work expertise
to advise the court as to what is in the child's best interests.
19. In the current constrained financial circumstances
I cannot offer a solution save to ask that the bureaucracy and
management is culled; weight is given to the views of experienced
practitioners who are doing the work and if possible something
like the "old" system is brought back which worked extremely
well.
(ii) The impact on court proceedings and access
to justice of recent and proposed changes to legal aid
20. Over the years since the Legal Aid Board
gave way to the Legal Services Commission it seems as solicitors
we have been embroiled in a battle just to try to continue to
concentrate on doing quality work for the client, be they parent,
child or relative.
21. The idea (in the Access to Justice Act) to
purport to make what can only be demand led into a procured service
was doomed to fail and cause problems particularly in a time of
financial constraints.
22. I must have responded to maybe 15 consultations
in the past 10 years. Whereas I understand the reason for fixed
fees to supposedly save the administrative burden of assessing
costs, I think they are intrinsically wrong particularly in care
cases.
23. I have never agreed that paying hourly rates
encourages inefficiency. On the contrary paying a fixed fee either
encourages the solicitor to take on too much work leaving them
unable to give the case the attention it deserves or encourages
them to employ less qualified staff which is also harmful to the
case.
24. In care matters you do not choose your cases.
When acting for the child you are called by the court and have
no idea what the case may entail. Similarly when acting for a
parent although the way they come to you may be by recommendation
or just walking in to your office..
25. In my consultation response to the original
proposals for fixed fees I stated:
We do not agree that fixed fees of any sort are the
way forward in care proceedings. The nature of the issues is too
variable and the importance and implications of the decisions
too great to risk any reduction in the quality of service on offer.
26. Fixed fees have of course come in and if
the new contract goes ahead most of the last vestiges of hourly
rates will also be gone.
27. Solicitors are private businesses. Yet we
have to take on cases not at the outset having any idea of the
work which may be entailed. If the work exceeds the fixed fee
then we have to do double the amount before we can "escape".
At present the fixed fee for representing a parent in care proceedings
is £3589. This means we would have to do £7178 worth
of work before we could get any extra. Thus if the work up to
£3589 is at an hourly rate of £70 per hour by the time
one nears the escape one is being paid at £35 per hour! What
business sense does that make?
28. Because of the intense and complex nature
of the work you cannot carry too many cases at one time. In addition
because delays are caused by courts timetable, Local Authority
inefficiencies; the lack of Guardians and unavailability of experts
you also often have no control over the length of cases.
29. On the other hand what sense does it make
to pay such a large initial figure for a case which after a short
while the Local Authority decides to withdraw?
30. At the age of over 60 I am now working harder
than I have ever done (maybe 70 hours a week) just to try to continue
to do a proper and professional job for the clients in an efficient
and cost effective way.
31. We feel that our professional integrity has
been impugned and we have not been listened to by the LSC. The
bureaucracy again has intensified. For example we are supposed
(although being paid by way of fixed fees) to keep a running computerised
record of every telephone call and letter out and in (paid at
the rates of £4.10 and £2.05) as well as rightly keeping
full notes of all work undertaken on the file. Every certificate
has a cost limit and we have to apply and justify any increase.
There are different rates for different stages of work.
32. We feel that over the years our views have
been disregarded and our dedication and professionalism taken
advantage of. This has caused many to become demoralised and want
to give up. All of this has caused suppliers to leave the system.
33. The supplier base had already reduced and
with the proposed cull of family firms from 2400 to 1300 the pressure
of work will only increase.
34. We are dealing with people who are vulnerable
and need sensitive professional help. We also need to be able
to train and bring in new blood to the profession.
35. The impact on the courts and the family justice
system is only too obvious.
36. In private law cases already there are many
litigants in person causing difficulties and delays for the courts.
In the most intractable cases the courts continue to make use
of their powers under Rule 9.5 to make the child a party and appoint
a Guardian ad litem to represent their interests to ensure
that at least there is one representative to help take the matter
forward.
37. We are very concerned that the reduction
in suppliers and increased pressures will lead to further delays
in the courts. Unrepresented litigants are also less likely to
compromise which could lead to longer hearings and yet more pressure
on the courts.
September 2010
|