Operation of the Family Courts - Justice Committee Contents


Written evidence from the Law Society of England and Wales (FC 26)

THE OPERATION OF THE FAMILY COURTS

EXECUTIVE SUMMARY

1.1  Cafcass's current operations are having a significant impact on court proceedings. Delays in the appointment of a guardian and the limited capacity of guardians to be actively involved in family proceedings places the welfare of children at risk.

1.2   Changes to the remuneration framework for legal aid has meant that the fees do not always cover the cost of those clients with mental health difficulties, requirements for language interpreters or complex legal problems. Further, some judges have indicated they are already seeing an increase in litigants in person.

1.3  The recent Family legal aid tender round has resulted in the number of firms offering family legal aid services being reduced from 2,400 to 1,300. This will present problems for clients in care proceedings where there are often numerous parties, and in cases where conflicts emerge and the client needs to change solicitors firm.

1.4  There are also concerns that proposed legal aid cuts are likely to adversely impact on divorce, contact and ancillary relief proceedings. If vulnerable clients fail to get legal advice, there is a significant risk of them falling into a spiral of deprivation.

1.5   Mediation is only one of many Alternative Dispute Resolution processes. Mainline ADR processes can and do operate as methods for avoiding a judicial determination of family matters.

1.6   There is concern that the Children, Schools and Families Act 2010 may adversely affect family proceedings, including the willingness of parties to speak freely, the possibility of increased preliminary hearings and the publication of sensitive personal information.

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

Public Law Proceedings

2.1  Cafcass's current operations are having a significant impact on court proceedings. In a number of areas in England there are significant delays in the appointment of a guardian. Where a guardian is not appointed or is appointed but does not have capacity to be actively involved this affects all the key stakeholders within the proceedings.

2.2  Where a guardian is not available the court will usually need some guidance as to the welfare and wishes of the child, and pressure may be placed on the child's solicitor to undertake such a role which they are not trained to do. Most importantly, the best of interests of the child cannot be represented where there is no guardian to give a voice to that child.

2.3  The Law Society has been informed that to reduce the backlog of unallocated cases in London some guardians have been allocated additional cases. While this reduces the number of cases awaiting the appointment of a guardian, it also decreases the capacity of the guardian and in most cases they are unable to deliver a full service.

2.4  The Law Society has been informed of two public law cases, which were issued in January and March 2010, where the solicitor has received a letter from Cafcass informing them that it will be at least a further six weeks before a guardian can be appointed. Until a guardian is appointed the best interests of the child cannot be adequately considered during the proceedings.

Private Law Proceedings

2.5  Due to the limited capacity of Cafcass officers safeguarding is often not completed by Cafcass in private law children matters before the first directions appointment. As a result the judiciary and Cafcass will not usually release a case for mediation assessment and in-court mediation is unable to take place. Further, incomplete safeguarding usually results in a misuse of judicial resources as the case needs to be relisted, with no orders made, and may delay other cases from being heard.

2.6  Given the concerns raised with the current operations of Cafcass there is an argument that the Department for Education may not be the most suitable sponsorship organisation. Contrary to this argument is that one of the primary aims of the Department is to safeguard children, which is inline with the duties of Cafcass.

2.7  We attach at annex A, a letter to the National Audit Office setting out our views on Cafcass's response to the increase in demand for its services.

(ii)  THE IMPACT ON COURT PROCEEDINGS AND ACCESS TO JUSTICE OF RECENT AND PROPOSED CHANGES TO LEGAL AID

3.1  The many recent changes to family legal aid has resulted in only the most dedicated firms remaining to undertake this sensitive work. For many firms, the more lucrative privately paying work subsidises the low paid legal aid work.

Recent Changes to Remuneration

3.2 The remuneration framework for family legal aid has been subject to continual change over the past five years. The Legal Services Commission (LSC) initially introduced tailored fixed fees, followed by national fixed fees for legal help (initial advice) and followed this by regional fixed fees for significant areas of work in public law in October 2007. In December 2008, the LSC commenced its consultation process on fixed fees for private law children work and for advocacy for both barristers and solicitors. The final outline was published in October 2009 and will become effective on October 14, 2010.

3.3 Previously under the hourly rate regime, firms were paid for the work undertaken by hourly rate which had been frozen for several years and is about one third to one quarter of private rates. However, at least under this system, firms were paid for the work undertaken and the remuneration scheme did not affect the clients firms felt able to take on. If a client has mental health difficulties, cannot communicate without a language interpreter or has complex legal problems, it is necessary to spend more time with the client discussing the issues. However this is not reflected by the remuneration which only allows an escape to hourly rates once the fixed fee has been exceeded twice or three times depending on a complicated matrix.

3.4  We do not have evidence as to whether those vulnerable clients with complex legal problems are still able to access advice as previously. Clients who cannot find representation have no alternative but to become litigants in person. Some judges have indicated that they are already seeing an increase in litigants in person, and that they fear a further increase. These cases are longer as judges are obliged to spend more time in explanation and in eliciting information. Litigants in person cannot be advised as to when it is appropriate to agree settlement terms, therefore pre-hearing settlements or settlements at the door of the Court, are less frequent. Litigants in person do not always understand why decisions are taken, have difficulty in accepting them and may well try to bring inappropriate appeals requiring even more Court time.

Increases in Court fees

3.5  The family fees order, in force from 1st September 2010, has increased court fees significantly. For assisted clients, these fees are paid from the legal aid fund and will impact significantly on the capped budget. More money spent on Court fees means less money to help clients.

2010 Family legal aid tender round

3.6  The LSC has just undertaken the first electronic competitive tender round for contracts for 2010. The number of firms able to offer family legal aid services following the tender round has been reduced from 2,400 to 1,300. This will affect access. At the time of writing, the LSC refuses to confirm details of contracts granted, but we understand some large towns have been left with only 2 suppliers and some large rural areas with only 5 suppliers, which will leave obvious gaps in provision.

3.7  The LSC has only guaranteed five firms for each procurement area. These areas can be vast, such as Cornwall. However, in some cases- particularly public law matters- there will be more than five parties, especially as grandparents take on the care of grandchildren, and some may have a conflict with one of the firms in the area. The small number of firms in such a large area as Cornwall will result in some clients having to travel long distances on poor public transport if they are to find representation at all.

3.8  Many firms that have lost their contracts will have no alternative but to close down, either by force of economic circumstances or because their key staff leave and move to successful firms. This will leave significant numbers of clients trying to find alternative solicitors. The successful firms will be reluctant to take on the transferred clients, as the work involved is significant and may not be fully covered by the relevant fixed fee. The courts may have no alternative but to adjourn hearings due to lack of representation, which will adversely affect all the parties to the case, especially children.

3.9  The Law Society Gazette[68] reports that Lord Justice Wall has warned the Legal Services Commission that he has been "inundated' by family judges expressing serious concerns over the outcome of the family legal aid tender. Lord Justice Wall quoted one judge in Wales who has expressed alarm at the "horrendous prospect of inexperienced practitioners taking over this heavy work" and warned of a potential rise in litigants in person.

Proposed Changes

3.10 The new government has been reported as proposing cuts of up to 25% to the legal aid budget; as yet there are no detailed proposals of how these are to fall.

3.11  It is now well recognised that if clients fail to get timely good legal advice, there is a significant risk of them falling into a spiral of deprivation on the private law side. On the public law side, there is a risk of children being unnecessarily taken into care. The costs of housing, care for children, education, health and the impact on other public budgets are far greater than any properly funded legal advice would have been, and early intervention in domestic abuse cases can also save lives as well as saving the significant costs mentioned above.

3.12  We can only speculate as to where cuts will fall in legal aid.

Divorce

3.13  If vulnerable clients can no longer access legal advice for divorce, court offices and District Judges will be inundated with queries, and incorrectly completed paperwork. The current staff will be unable to cope. Prayers will be incorrectly completed, with resulting inability to pursue financial relief. This may lead to people becoming reliant on welfare benefits when a successful claim for financial relief might have reduced or avoided such dependence.

Ancillary relief

3.14  Most of these costs should be recouped by the statutory charge. Most importantly, there is the equality of arms issue. Often the wealthier party, usually the husband may be privately paying and be seeking to hide assets from the wife. If she is not represented, she may not be able to force disclosure. The Form E and the ancillary relief procedure is quite complex, and many might give up if unrepresented rather than fight the case to receive their entitlement.

3.15  We repeat the argument that more litigants in person will result in longer hearings, and an increase in the numbers of judiciary and court staff with a consequent increased expense to the public purse.

Contact

3.16  In addition contact cases often raise issues of domestic abuse or child welfare which sometimes only come to light as the case proceeds. If these actions are removed from scope, and safeguarding considerations are not given due weight by experienced advocates, some vulnerable children may be put at risk.

iii)  THE ROLE, OPERATION AND RESOURCING OF MEDIATION AND OTHER METHODS IN RESOLVING MATTERS BEFORE THEY REACH COURT

4.1  In answering this question, the focus is on financial and private law children matters.

4.2  Family mediation is only one of many Alternative Dispute Resolution (ADR) processes. ADR denotes a continuum of options for resolving disputes without going to court ranging from inter-party negotiation to dispute resolution through mediation, collaborative law, early neutral evaluation, to arbitration and adjudication.

4.3  The most common forms of family ADR are family mediation and collaborative family law (CFL).

4.4  CFL is a process in which solicitors and their clients agree in writing to reach a settlement on matters (concerning children or finances) without court involvement, and for the solicitor to discontinue representing their client where this fails.

4.5  Family arbitration involves an independent and impartial third party considering both sides in a dispute, and making a decision which resolves the dispute. There have been little-used schemes for non-binding family arbitration for many years, with a new scheme expected to start by 2012. Those administering it hope an eventual rule change will allow for the new scheme (which, to begin with, will only be available for financial and property-related disputes) to offer binding arbitration.

4.6 Most frequently used for resolving family matters before they reach court is inter-solicitor negotiation. This does not necessarily involve litigation, even though some regard it more as part of the mainstream of family law, rather than as ADR.

4.7  All four mainline ADR processes can and do operate as methods for avoiding a judicial determination of family matters.

Operation

4.8  Process selection has historically been via solicitor-gatekeeper. Since 1998 when public funding became available for family mediation from a mediator, the funding code mechanism where a disputant must meet and hear about mediation has brought about a shift away from litigated outcomes towards mediated settlements. The LSC has informed the Society that in 2009/10 there were 14,687 mediation starts where at least one party was legally aided, with 70% of the mediations closed reaching a full or partial agreement.

4.9  There has been little corresponding shift amongst privately funded family disputants towards ADR, and away from litigation. There has instead been an increase in litigants in person who do not qualify financially for legal aid and do not have (or choose to expend) the resources to access any of the mainline ADR processes.

4.10  The Society is aware of the Ministry of Justice's plans following the Support for All: the Families and Relationships Green Paper in January 2010 to introduce compulsory consideration of mediation, analogous to the LSC Funding Code mechanism. The Society has concerns that such a mechanism only adds one single ADR process- mediation- into a disputant's ADR selection process, and suggests that any mechanism requiring a compulsory consideration of ADR processes offers a selection of ADR processes.

4.11  The present mechanisms for diversion of contesting participants away from litigation into mediation (if not into additional forms of ADR), set against those who have capacity to effect such diversion are set out in the following table.

*  These referral mechanisms and referrers also have capacity to effect referrals to ADR processes other than mediation.

Resourcing

*  LIP defined as a litigant in person not paying for any professional assistance or engagement by way of dispute resolution.

**  A LIP so defined can engage "free of charge" in negotiating with a legally aided or privately funded disputant's legal representative who will charge the represented "paying" disputants for participation in such negotiations.

In-Court Mediation/Court-Referred Mediation

4.12  We offer no evidence concerning in-court or court-referred mediation, since the focus is on "methods of resolving matters before they reach court", and these mechanisms operate after a matter has reached court.

4.13  However, in August 2010 the LSC published a report into its In-Court Mediation Pilot Project which ran from June to December 2009, attached at Annex B and C.

4.14  We wish to mark the disappointment of both solicitors and mediators following the LSC's decision not to offer additional funding for "duty mediators" to attend court to see parties at first directions appointments under the President of the Family Division's Revised Private Law Programme (PLP).

4.15  This is resulting in many mediators and mediation services reducing commitment towards, withdrawing from and even declining to participate in this excellent initiative due to commercial non-viability, notwithstanding national PLP implementation being due October 2010.

4.16  Further information on family mediation can be found at Annex D.

iv)  CONFIDENTIALITY AND OPENNESS IN FAMILY COURTS, INCLUDING THE IMPACT OF THE RECENT CHANGES IN THE CHILDREN, SCHOOLS AND FAMILIES ACT 2010

5.1  The Law Society supports openness in the family courts, and is not aware of any significant impact on family proceedings that has resulted from the initial provisions permitting the media to attend family proceedings. However there is concern that when Part 2 of the Children, Schools and Families Act 2010 (the Act) which enables the media to report the substance of family proceedings, comes into force it may have a detrimental impact on family proceedings.

5.2  In most family proceedings there will be no media interest during the hearing, however it is important that where media representatives are present this does not impact on the proceedings.

5.3  One consequence of permitting the media to report the substance of a case will be the deterrence for children and parents to reveal personal information. If a child or parent feels there is a possibility that information provided to an expert or in court may be published this may affect what is revealed. If there is a reluctance to talk openly, the fact finding process is undermined.

5.4  There is also concern that the proposed framework may increase preliminary hearings where the court will be asked to prevent media representatives attending, and/or reporting on the case. Any delay in hearing a case may cause significant harm to the parties involved in the proceedings.

5.5  There is particular concern with section 19 of the Act which provides the power to alter the treatment of sensitive personal information. The Law Society believes that this section goes beyond the intention of opening up the family courts and places vulnerable parties in a situation where personal information may be published.

5.6  We attach at Annex E, a Law Society briefing which was provided to Members of Parliament when the Children, Schools and Families Bill was being debated in the House of Lords.

September 2010



68   Monday 09 August 2010, Family judges alarmed over legal aid tender by Rachel Rothwell Back


 
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Prepared 14 July 2011