C. Magistrates' Courts Fees Order
2008 (SI 2008/1052)
Civil Proceedings Fees Order 2008 (SI 2008/1053)
Family Proceedings Fees Order 2008 (SI 2008/1054)
Summary: These Orders are part of a continuing
review of civil court fees, due to be completed by 2010. The biggest
change they make is to increase fees for child care proceedings
to reflect full cost recovery, meaning fees of over £4,000.
Two key concerns emerged from the responses to the consultation
exercise;
- local authorities did not have sufficient
funding in this area. To address this, the Government have announced
that an additional £40m is being transferred to the local
government finance settlements for public law cases from April
2008. Concerns have however been expressed that this money has
not been ring fenced.
- the need to consider funding might influence
a local authority's decision about when and how to pursue a care
order. A number of organisations representing the legal profession
and children's interests are reported as being concerned that
the significantly increased fees might further delay a local authority's
decision as to when to start care proceedings.
These Orders are drawn to the special attention
of the House on the ground that they give rise to issues of public
policy likely to be of interest to the House.
14. The Ministry of Justice (MoJ) have laid these
three Orders under section 92 of the Courts Act 2003 together
with an Explanatory Memorandum (EM).
15. The Orders are part of a rolling review of
civil court fees which is due to be completed by 2010. Her Majesty's
Courts Service is implementing a strategy, agreed by Ministers,
to reform the court fee system with the dual objectives of ensuring
that statutory fees should generally be set at a level that recovers
the full cost of the service provided (but no more) and protecting
access to justice through a targeted system of fee concessions
for the less well-off.
16. The current level of fees does not reflect
the cost of providing the service, which is on average £4,000
(EM paragraph 7.4). These orders increase fees for child care
proceedings to reflect this average cost. The fees are paid by
local authorities, responsible for instigating care proceedings.
The EM explains that two key concerns emerged from the responses
to the consultation exercise:
- local authorities did not have sufficient funding
in this area; and
- that the need to consider funding might influence
a local authority's decision about when and how to pursue a care
order.
SUFFICIENT FUNDING
17. The Department for Communities and Local
Government announced on 24 January 2008 that an additional £40m
was being transferred to the local government finance settlements
for public law cases from April 2008. The MoJ believe that this
is likely to exceed the total fees payable because the sum assumes
that the maximum fee will be paid in each case. By transferring
this subsidy towards the full cost of these court proceedings
from the courts service to the local authorities that initiate
the cases, the Government aims to provide greater visibility of
and accountability for, the cost of providing services. However
concerns have been expressed that this money has not been ring
fenced and may be used for other purposes.
TIMING OF CASES
18. The second main theme of the responses was
that authorities would be influenced by financial considerations
and would not always act in the best interests of children: the
legal profession alleges that local authorities are already often
too slow to start care proceedings.
19. The timing of cases may also be influenced
by the revised judicial case management procedures set out in
a Public Law Outline (PLO) applicable to all family courts from
April 2008. The PLO will also be underpinned by revised statutory
guidance to local authorities in England and Wales to help them
in preparing public law (child care) applications to the court.
The proposed fees are designed to support these reforms, for example,
cases identified as suitable for an early Final Hearing under
the PLO would pay significantly less in fees than those cases
that have to go through all the possible stages. The Explanatory
Memorandum states that the PLO is intended to discourage unnecessary
or premature use of care proceedings, encourage better case preparation,
improve case management by the courts and provide court fast-track
court processes for appropriate cases. However there is concern
in the legal profession that Local Authorities already tend to
be too slow in instituting care proceedings.
20. In the Explanatory Memorandum, MoJ state
that both the Local Government Association and the Association
of Directors of Children's Services are conscious of their statutory
duty to protect children at risk of significant harm and, in their
responses to the consultation, confirmed that local authorities
are not influenced by cost considerations in their approach to
initiating proceedings. However a number of organisations representing
the legal profession and children's interests have recently been
reported as being worried that the significantly increased fees
might influence local authorities' decision making and deter them
from seeking care orders promptly, causing further delays, particularly
in borderline cases.
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