Family Justice Council fears impact of legal aid reforms on public law cases

Government plans to limit legal aid to those with a strong connection to the UK are unlikely to lead to a reduction of expense in family cases and could impact on the 26-week time limit for care proceedings, the Family Justice Council has warned.

In its submission to the Ministry of Justice Transforming Legal Aid consultation, the FJC – an inter-disciplinary body that provides advice on the family justice system and which is chaired by the President of the Family Division – said: “The impact of these limitations will further….impact on those most in need of representation and least able to afford it; preventing them from accessing protection provided by law in other legislation.

“These groups include those subject to care proceedings, especially emergency protection applications, and the victims of domestic violence or forced marriage.”

The submission added: “It is inherently unjust and unfair that, for example, a child in need of protective measures should be unrepresented because sufficient information about their circumstances is not available when their proceedings are issued.”

Questioning whether the MoJ’s claimed savings would be of any real significance, the FJC argued that the uncertainty surrounding the legal test was likely to cause delay and additional, unnecessary hearings.

It said: “In care proceedings where significant reforms are underway to reduce delays, the uncertainty about representation will mean that the first hearing, at which crucial decisions are to be made to ensure the timely progress of the case, will not be effective.

“’Front loading’ (essential to the implementation of the 26-week time limit) with much of the work having to be done early in the proceedings, means that parents and children need legal representation from the very outset of proceedings.”

The council added that a legal aid provider would not necessarily have access to the information needed to make a judgement under this provision, as such information often becomes available only after several weeks through protocol requests to the Home Office.

The FJC went on to warn that the proposed residence test would create situations, particularly in urban areas with diverse populations, in which the local authority would be the only legally represented party, in proceedings which involve parents and children who speak little, or no, English and so require interpreters.

“We anticipate that in these situations the local authority would bear the whole of the cost of assessments, and any other disbursements,” the response added.

In other comments, the Family Justice Council said:

• It did not agree that proposals to cut the public family law representation fee by 10% were necessary, proportionate or would assist in the efficient and timely administration of justice. Such further reduction in remuneration “will cause difficulty for the judiciary, HMCTS, Ministry of Justice and Department for Education at a time of significant change and reform in the family justice system”.
• Fees for public family law had already been heavily cut. If the current proposal is implemented, there will have been a 30% cut in the fixed fee rate in a period of three years (2011-14).
• Inadequate remuneration risks adversely affecting the courts through poor representation leading to ineffective hearings and additional hearings and thus to greater expense overall. “Fixed fee provision has already led to this difficulty in areas of the country. If implemented the number, diversity and quality of providers will be further affected at a time when there is already an impact from poor provision.”
• It was a “misapprehension” to assume that a shorter time span for cases would mean that solicitors would do less work. “Given the impact of the reforms thus far have resulted in the same, or more, work conducted by representing solicitors in a much tighter timeframe.” The move to more focused and proactive case management, at an early stage, would frontload the work done in cases, but would not necessarily reduce the amount of work that needs to be done.

The FJC also said it did not agree with the MoJ’s proposal to cut fees paid to experts by 20%, saying that there was real concern that an arbitrary cut of this kind would impact on their availability.

“Evidence provided to the FJC indicates that many experts will not assist the courts should the proposed cut be carried out, as it will not be worthwhile employing staff to assist in conducting the work,” it reported.

The submission added: “It is accepted that the ‘free’ market that experts have traditionally operated in for many years has to re-adjust to the current financial climate. However, a further blanket cut of 20% is likely to create an exodus of experienced experts from the family courts, especially those experts operating within the most professionally robust and ethical practices as they refuse to undertake assessments without sufficient time.”

In its opening remarks, the FJC criticised a lack of robust impact assessment within the consultation document, a lack of any assessment of the impact of the changes to legal aid to date, and a lack of reliable information or evidence regarding past spending, projected spending, and budgets.

It also warned of further reductions in the number of legal aid providers as a result of the proposals.

“This may have the impact of causing delay; particularly in public law cases when parties entitled to representation are already struggling to find a provider and are unlikely to be able to find a local provider. This continues to be a significant difficulty in respect of access to justice and representation for parties to public law proceedings in rural areas with expensive and poor public transport networks.”