The information comes from the HMCS FamilyMan database, the software so maligned by the Norgrove Review. It is clear that in some respects the data is unreliable, the most obvious example being the numbers of private law children cases with guardian appointments, which are very obviously too low (260 out of 45020 cases) and is likely to be simply because court staff do not consistently update the case records when an appointment is made.

So what I’ve been given is a set of tables.

Table 1 (actually comprised of two tables) shows Private law Children Act cases still outstanding in Family Proceedings Courts, as at 30th June 2011. The first shows “Applicant Representation”, the second “Respondent Representation”. Table 2 is the same date for the County Court, Table 3 for the High Court.

It’s unclear what duplication of data there is between the Applicant and Respondent tables, or whether the parties in cases involving cross applications are each counted in both tables as applicant and respondent. It is difficult to guess what proportion of “applicants” are applicants for contact (probably majority fathers), applicants for residence (probably reasonably evenly split) or applicants for other orders or combinations of orders. And any single party may be both applicant (say for contact) and respondent (say to a residence application). As a consequence it’s difficult to draw much from the fact that respondents are far less likely to be represented than applicants in all tiers of court (broadly speaking around 20% of Applicants are unrepresented and around 40% of Respondents are unrepresented in all tiers – based on the “none” figures). One could hypothesise that those who are initiating proceedings are far more likely to have organised themselves and actively sought advice and assistance prior to issue, or that a high proportion of those who are applicants do so because of intransigent and inflexible exes who may be less inclined to seek or follow advice – but we don’t even know when the data for representation is gathered (at issue?) or if it is maintained and updated as cases progress, lawyers are sacked and clients run out of funds for representation. Frankly, who knows?

But the interesting information one can glean from these tables is this: there is a column for mean length of case and median length of case. In all levels of court, for both Respondents and Applicants and regardless of who is or is not represented the median length of case is significantly less than the mean length of case. If my rudimentary grasp of mathematics does not fail me this is an indicator that there is likely to be a tail end of a few MAHUSIVELY long cases which are skewing the mean and pushing it up. I think this is significant. By way of an example the mean case duration in the FPC is 39 weeks, but the median is only 30. That’s almost 25% shorter.

The other trend that shows clearly across all these tables is that the cases where all applicants or all respondents are represented take longer to complete than those where there are no lawyers. Again, it’s difficult to draw much from this: it doesn’t mean lawyers make cases longer. It is more likely to reflect the fact that more lawyers are more likely to be involved in the more complex cases. What we aren’t able to say is how long the cases involving lawyers would have taken if the lawyers had not been involved OR what the quality of outcome would have been without them. It could reflect the fact that those who are unable to secure representation give up or fail to run important arguments, leading to swifter if less just disposal.

Interestingly in the County Court the shortest cases by mean and median are those where all applicants are represented. This class of case makes up by far the biggest single class of cases (27,160 of the 33,830 cases in the County Court and 45,280 in all tiers combined). Where all applicants are represented in the County Court the median case duration is 40 weeks, compared to 51 and 44 for “some applicants represented” and “none” respectively. This median should be compared with a whopping 62 week mean duration for cases where all applicants are represented, again suggesting there are a few intractable cases skewing the mean.

By contrast, where all Respondents are represented in the County Court cases take longer. Durations in the respondents table are lowest where some respondents are represented. This probably mainly reflects guardian cases, where child respondents are represented, and may be a reflection of the fact that a Guardian’s involvement can help to identify issues and to bring matters to a head with recommendation and a proactive child focussed push for resolution.

Putting all of this in perspective the total numbers of private law children cases are vast (45,280) compared with public law cases (13,700 in all tiers), notwithstanding the interminable rise in care issue rates. Whilst FPCs are carrying out (roughly) 1/3 care 2/3 private law, only around 20% of county court children work is care (by case volume not necessarily workload, resource or duration).

Unfortunately the response did not give any information about case durations in ancillary relief cases, nor was any explanation for this offered.

So, in summary, what does this tell us? Well, it isn’t very meaningful without other data and explanation, a point that David Norgrove has rightly made. How can either HMCTS, the judiciary or the Government understand the reasons why some cases take longer, absorb more resource, unless it understands the dynamics, the roles, what works and what doesn’t work? It needs the management data and proper analysis to do that. The Government doesn’t have the data to back up the proposals in LASPO, or to properly assess the impact of it on either access to justice, case volume, case duration or overall cost efficiency, because neither HMCTS nor anyone else is gathering it. It’s clear from a fairly basic analysis of the data that is available that the issues are complex and that it is not easy to evidence a hypothesis that a reduction in the number of lawyers will result in a reduction in average case duration. It is even harder to evidence the proposition that such a fundamental shift in how the system operates can be achieved without damage to access to justice. When listening to Ministers spout about LASPO and about lawyers (fat cats advancing behind a wall of women and children etc etc) lawyers are inevitably cast as part of the problem not the solution. They may indeed be on occasion part of the problem. But we really do need to turn the dialogue on it’s head: lawyers are part of the personnel that the Family Justice System relies upon in order to achieve the throughput of cases that it does. At the moment there is at least one lawyer working on the majority of cases. The LASPO proposals will, through decimation of legal aid in family (and other) cases, make massive cuts to the personnel available to service cases, leaving the already depleted and demoralised HMCTS staff (and the judiciary) to pick up the slack. There isn’t any slack in the system.

• an article on the bringing to a close of children proceedings through the making of orders under s91(14) Children Act 1989: Section 91(14) Orders – A Never Ending Story? (Family Law Week), and
• an article on the attempt to bring an end to civil legal aid by the government: Ignore the warnings about legal aid changes and risk meltdown in courts (Guardian)

Those responsible for the latter could do to take a leaf out of the former: draconian powers, not to be used summarily…sadly we read today that the Government is planning to fast track the Legal Aid, Sentencing and Punishment of Offenders Bill – second reading on Weds next week. That is really, really shoddy: politics at its worst.

Headlines: The confirmation of the removal of large numbers of private law cases from scope of legal aid, and of the reduction of family fees by 10% (on top of the FAS cuts implemented in May).

The Bill

Part 1 of the Bill itself is dedicated to Legal Aid (Clauses 1-40). The Bill contains provisions to abolish the LSC and transfer the day-to-day administration of legal aid to the Lord Chancellor. In practice, this will be done by civil servants in an executive agency of the Ministry of Justice. However, decisions on legal aid in individual cases will be taken by a statutory office holder: a civil servant designated by the Lord Chancellor as the Director of Legal Aid Casework. The Lord Chancellor will have no power to direct or issue guidance to the Director in relation to individual cases

There are empowering sections for the Lord Chancellor on legal aid issues, there is some provision about funding legal services and eligibility for legal aid (Clause 20). By Clause 36 the Legal Services Commission is abolished.

Clause 9 is an important provision for the payment of legal aid for ‘exceptional cases’ (i.e. where failure to do so would be a breach of the individual’s Convention rights within the meaning of the Human Rights Act 1998). It is clear from the tenor of the response paper that the Government anticipate that this will be a narrow category, albeit with some initial boundary testing via JR.

In Part 2 of the Bill there is provision (Clause 45) for a new section 22ZA of the MCA 1973 for the payment of a sum to enable the other party to obtain legal services in proceedings for divorce, nullity of marriage or judicial separation. Clause 22ZB sets out the matters to which the court should have regard in a legal services order.

Schedule 1 sets out the categories of cases in and out of scope. Schedule 1 is structured in a rather confusing way with a set of “excluded services” and other “exceptions and exclusions” some of which then don’t apply in certain instances. I suggest you tackle it in print rather than on screen.

The Response

The response contains a narrative of the contents of the Bill, and sets out the Legal Aid Reform Programme.

There is a very poor assessment of the impact of litigants in person in the courts.  There is a summary of the findings of a literature review in the main response thus (para.138) “Overall the review found that the evidence available on litigants-in-person tends to suggest a mixed impact in length of proceedings. This was affected by case type and how active the litigants were. It was suggested that cases took longer when the unrepresented litigant was active but could take less time when the litigant was inactive.” See also para 68 – 69:

“68. However the Government does accept, even if there is no conclusive evidence of this, the likelihood of an increase in volume of litigants-in-person, and potentially some worse outcomes for them materialising. But it is not the case that everyone is entitled to taxpayer funded legal representation for any dispute or to a particular outcome in litigation. Our new exceptional funding scheme will mean that no one will be deprived of their fundamental rights of access to justice. Taxpayer funded representation has had to be targeted on priority areas.

69. Litigants-in-personareafeatureofthecurrentjusticesystem.Some people choose not to be legally represented because they consider it unnecessary or that they can do a better job themselves, and others, who may fail to qualify for legal aid on either means or merits grounds, may feel that they are unable or unwilling to pay for representation.”

and 74:

“74 …further examination of the system to support litigants-in-person is required and we intend to review this issue.”

But not before they implement the cuts it seems.

Even though the majority of responses to the Green Paper were “overwhelmingly” against the removal of private law cases from scope, the proposal to exclude large numbers of private law cases from the scope of legal aid has been confirmed. However, some of the exceptions have been expanded.

Domestic violence: The Government maintains that it accepts that, to ensure that victims of domestic violence are protected, the criteria for the domestic violence exception originally proposed in the consultation needed to be widened, whilst maintaining the requirement for objective evidence of domestic violence. It therefore decided to accept some additional circumstances as evidence of domestic violence, so that the criteria should target legal aid to genuine cases without providing an incentive for unfounded allegations of domestic violence. Legal aid will be now available, for example, where there has been a referral to a Multi-Agency Risk Assessment Conference in the past 12 months, as well as where a protective injunction or other order has been put in place in the past 12 months.

The Government accepts that legal aid should be routinely available in cases where a child is at risk of abuse, provided that there is objective evidence of the risk of abuse. The Government has therefore decided to extend the approach to the criteria for the domestic violence exception in private law family cases to provide legal aid for the party seeking to protect the child in cases.

I need to look at this properly but my understanding of the position from the response paper is that in order to obtain a grant of legal aid the applicant for funding must produce objective evidence either be criminal proceedings, MARAC OR civil findings of fact (or in the case of children a CP Plan). If this is right it rather defeats the object of having funding, which will in many cases be in order to run a fact finding exercise. As I say that is something I need to check. Views welcome in comments.

Other points:

• Legal aid for mediation will be expanded (slightly).

• The interim lump sum provision will be brought in for ancillary relief cases (see above); however

… the Government has not been persuaded that legal aid should be available for advice and/or representation to apply for an interim lump sum costs order or for enforcement proceedings (see para.119)

• The exceptional funding regime will be in place to provide legal aid where the failure to do so would be likely to result in a breach of the individual’s rights to legal aid under the Human Rights Act 1998 or European Union law.

• On the subject of fees… it is to be noted that “there was strong opposition to the proposals”; it is further accepted that “there is a risk that the fee reductions could lead to a reduction in the availability of solicitors and barristers prepared to undertake legally aided work” (para.233)… (para.234) however, “… we intend to implement the reduction of 10% to all fees paid under the civil and family legal aid scheme as set out in the consultation”

• The proposals for QCs remains as proposed in the Green Paper: “A QC is a specialised resource. The Government takes the view that they should only be used in novel, complex or exceptional cases which require that level of skill” (para.245).

• Expert fees: “The Government notes concerns about the level of fees paid to expert witnesses. However, given the need to make substantial savings to legal aid, it remains the Government’s view that fees paid to experts should be subject to the same constraints as those paid to lawyers”. (para.259)

More in due course.

A combination of laziness and kindness lead me to spare you a picture of the ubiquitous, and irritatingly always-beaming-Ken-Clarke. I can see him grinning endearingly whenever I close my eyes to lay down to sleep. Unfortunately whilst the dulcet tones of Mr Clarke may have an unintended if mild soporific effect, this phenomenon rather less so.

Tomorrow will see the publication of the Family Justice Review Interim Report, so watch this space and this one.

Will post commentary if I can, but possibly will be tied up.

Pa 4.101 of the Green Paper reads as follows:

In the Government’s view, the issues at stake in these cases are extremely important, and the very emotional nature of the subject matter, and the personal circumstances of the individuals involved, will often make it difficult for them to present their own case. We recognise that families must have a practical means of taking part in proceedings brought by public authorities that affect the integrity of the family unit. We do not consider that there are viable alternatives to legal aid. We therefore consider that legal aid funding is justified.

This for me is significant. This section of the text sets out the rationale for continuing legal aid in public law children cases, but what I am struck by is that the thrust of this paragraph is applicable to private law cases as much as it is to public law cases. The emotional nature of the subject matter, the personal circumstances of the individuals involved in private law cases often make it difficult for parents to present their own case in any dispute where there is a risk that they will lose contact with their children or that they will be taken from their care. This is no less so in private law disputes where cases frequently involve domestic violence, mental health, substance abuse, poverty and intergenerational problems with parenting and relationships – and where the practical consequences are as serious for some parents and children even if the potential legal consequences are less so (when compared with adoption orders) – a child’s relationship with one parent can be regulated by the court, but it is significant that it can be effectively destroyed or terminated at the will of one parent if there is not access to private law proceedings, whereas a child’s relationship with one or both parents may be legally and effectively terminated only as a consequence of public law proceedings. The Green Paper purports to aim to redefine the scope of legal aid so as to continue to protect the vulnerable, but in respect of parents in private law proceedings I think it signally fails.

The quote I have set out above talks about the ‘integrity of the family unit’. Of course, private law cases arise precisely because the family unit has already been disrupted and because there is a risk without access to justice of that unit contracting at the will of one parent so as to leave a child without a relationship with both parents. That severing or curtailing of a relationship may be justified in some cases, in most it will not. Such a scenario is as great an interference with a child or parents’ article 8 rights to family life as is the same outcome in the context of public law proceedings, but whilst in public law proceedings that interference is not permitted without sanction of the court and where necessary and proportionate in order to protect a child, the reverse is true in the case of disputes between parents where a resident parent may well be able to implement such drastic decision unless curtailed by the court’s intervention. Why then do such cases not warrant the protection that legal aid affords to the vulnerable non-resident parent?

As presently drafted the reforms will ensure that not only is a non-resident parent, most likely a dad, most unlikely to obtain legal aid to bring an application to ensure that he is able to maintain his relationship with his children, but that if he does he may well be faced with a legally represented ex-partner making allegations of domestic violence. In only some cases will such allegations be true. Such inequality of arms will lead to injustice for fathers and for children.

There is an underlying assumption behind much of the popular drive to curtail private law proceedings: that the parents involved in such proceedings are culpable for that, are pursuing their own selfish agenda and should not be supported in so doing. Such cases are brushed aside – they ought to be able to sort it out. Of course they ought. But this trivializes the nature of the disputes that fill our county courts, it treats both parents as equally culpable for the failure represented by the need to resort to proceedings where they may not be equally culpable, and it fails to appreciate the complexity and intractability of many of those disputes. It fails to appreciate that many (most) applications are made for good, child centred reasons, and that most parents do try as far as they are able to avoid unnecessary hostility – for most parents court is a weapon of last resort rather than choice. It is true that some cases are straightforward and can and should be resolved through alternative dispute resolution or just by a good old fashioned chat over a cup of coffee. Many – from my observation most – are not so simple. Some cases sadly enable hostile parents to continue and rerun old disputes to the detriment of the family and the public purse – we need to identify and manage these better but the trick is to do this without failing those parents who come to court with legitimate issues and concerns, and without failing their children.

Most parents are not blameless, and there is scarcely ever a problem parent versus an angel, but there is often an impasse that cannot be resolved without the decision being taken out of the hands of the parents – agreement ultimately cannot be imposed. If one parent is intransigent the other ultimately has no option but to come to law. This indeed is the purpose of the Children Act 1989 – the no order principle ensures (or should ensure) that no order is made unless necessary, but offers a mechanism for ensuring that children retain appropriate relationships with both parents where this cannot be achieved in other ways.

By all means redouble our efforts to divert appropriate cases to ADR (my own view is that it will rapidly become clear there are not so many of them, and that many agreements reached in such fora will not stick but to keep on trying is clearly right and necessary and I hope I am proved wrong), by all means increase judicial case management and efforts to encourage speedy resolution – by consensus if possible. But do not deny those parents who come genuinely to court asking for help to maintain their relationship with their children the right to an effective remedy.

On a separate but related point:

4.105 confirms that funding will be available for rule 9.5 proceedings (guardian’s in private law disputes). I have no disagreement with this. However, on current proposals it is highly likely that in such proceedings one or both parents will be litigants in person. The administrative burden likely to be placed upon children’s solicitors and counsel in such cases is likely to be significantly greater than in cases where legal representation is available for all parties. Given proposals to cut lawyers fees by 10% there are real questions to be asked about the financial viability of undertaking such cases and about the extent to which it is realistic to expect children’s solicitors to take up the slack when public funding is unavailable for parents.

Jonathan Djanogly MP, Parliamentary Under Secretary of State, will discuss the Green Paper on Legal Aid Reform at the next meeting of the All-Party Parliamentary Group for Legal and Constitutional Affairs (APPG).

This meeting will take place on Wednesday 24 November at 2:00pm, Committee Room 14 at the House of Lords. Two CPD points are available.

To confirm your place, please email Victoria May or call 020 7611 1496.

Further info contained in the APPG Flyer 24 November 2010.

I would love to be there but sadly can’t. It seems like a most entertaining way to obtain 2 CPD points – if you are able to go along I would be grateful for feedback by way of comment on this post.

At pa 4.14 it is said that the following are at the highest end of a spectrum of objective importance:

‘cases where the individual’s life is at stake, or they are at risk of serious physical harm. Also of high importance are cases where the individual’s liberty is at stake and cases where the individual faces intervention from the state in their family affairs, which may result in their children being removed from their care.’

So I wonder what the position will be in respect of enforcement of orders made under the children act? On the face of it these will be outwith the scope of public funding, unless the d.v. test is met. Committal obviously involves potential loss of liberty, and enforcement orders quasi criminal sanctions in the form of community punishment (unpaid work) – the seriousness of which is reflected by the fact that the amending sections of the act were drafted on the basis that the criminal standard of proof would apply. Surely public funding ought to be available for such matters? Often resistance to a contact order may be in the context of alleged domestic violence in which case funding may well be forthcoming for the respondent to the enforcement application if not the applicant, but what happens when a court has determined that allegations are not made out but the mother (it’s usually but not always the mother) continues to resist? No public funding for either party I think.

I wonder if we will get clarification on these issues prior to February when the consultation closes?

It is said at 4.69 of the paper that wherever possible, it would be in the best interest of those involved in private law family cases which do not involve domestic violence to take a more direct role in their resolution, using mediation and keeping court proceedings to the minimum necessary. Legal aid will no longer be routinely available for such cases.

Legal aid will be retained for mediation in private law family cases, including private law children and family proceedings and ancillary relief. This will apply to cases without d.v. but even where d.v. is present family mediation will be offered.

A fixed amount of legal help (£150) will be available also to assist with advice during mediation and immediately following to formalise and give legal effect to any agreement reached.

In the words of Bugs, That’s it folks! I venture to suggest that £150 will go only a short distance towards drafting a consent order in AR, and towards preparing the necessary forms and applications for such order to be approved. That is always assuming of course that the parties have been able as Litigants in Person to sort out their own Decrees, from which the power to make such a consent order derives.

It is unclear what is proposed where parties have agreed matters relating to children but their agreement breaks down. Are they expected to go back to mediation again (and again) at this juncture or to go to court unrepresented? My reading of the green paper certainly suggests that in cases of persistent inability or refusal to co-parent there will be no assistance from the state to resort to the courts (except in those cases falling into the d.v. category as per my previous post).

Thus, there appears to be no provision for legal aid for private children cases even where mediation has been tried in good faith and failed.

I am left wondering: what of those cases of implacable hostility (to contact or to ex), or of persistent bullying, aggression or unreasonableness, or of uncertain mental health?

There will be many resident parents whose ex-partners possess a number of these characteristics and who are faced with s8 proceedings for contact or residence unrepresented and without even the benefit of advice. I am not sure whether it is worse for the resident parent to be faced with a litigant in person ex partner or, where said ex is working, the lawyer acting on his instructions. It is in this context where it may be superficially attractive to raise allegations of domestic violence in order to secure representation.

Looking at the other side of the coin, there seems to  be no access to public funding for fathers (or mothers) seeking to maintain a relationship in the face of implacable hostility. Father’s rights groups may have something to say about the fact that there is now no access to justice for the unfortunate father who finds that his ex will not engage in mediation or will not honour agreements reached. It also appears to be the case that it will only be one side that will be funded in cases that involve d.v. (unless of course counter allegations are made, thereby bringing both parties within scope).

There is something unpalatable about the suggestion that funding in private law children cases ought only to be available for the ‘victim’ of domestic abuse. It is not always the case that orders are made in non-mol proceedings based upon findings of fact (and indeed the exception to the scope limitations extends to include non-mol cases yet to be determined). Often orders are not opposed (at present at any rate) and therefore, if relevant, it will fall to the s8 judge to determine any disputes of fact about violence or abuse. Why should she who makes the allegation secure funding where the alleged perpetrator does not, when she has yet to prove her case? If a victim of d.v. is vulnerable if unrepresented, is not a wrongly accused alleged perpetrator also vulnerable to injustice if unrepresented?