If you are from a firm who has lost out in the tender process to a local firm who successfully bid for a large number of matter starts you should read this NOW and circulate it widely.

POSTSCRIPT:

Email from a colleague:

Many of the economies we can expect will be false ones. Cutting legal aid will simply lead to more litigants in person. Cases will take longer and court costs will rise. Vulnerable children will be at greater risk. There will be more miscarriages of justice, costing huge sums to investigate and put right.

Full article here.

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Wall of Brick’s excellent observations on Martin Narey of Barnardos (and ex Probation Service) recent expounding of views on the family courts. I agree with Brick, and I think it best if I let him express my views through the link to his blog post, otherwise I might vent my spleen inappropriately – there are so many people with so many views on how to fix the family courts – Barnardos, LSC, solicitors organisations, CAFCASS, children’s organisations and slightly informed journalists… Every time I have turned on the radio I have heard a different element of the system being blamed for the totality of the current or impending catastrophe. I’m glad that the crisis is reaching a wider audience but there is an awful lot of balone out there.

Barnardo’s press release is worth reading in full. The headlines sound sensible – why not aspire to a 30 week longstop, even if we all know it won’t happen? But then you read that Barnardos want to have a a tiered, fast track target of 12 weeks for children under 18 months. Don’t get me started on why that’s *not good* idea. Quite apart from the fact that I hadn’t even worked out which end of my baby was up by the time he was 12 weeks, its astonishing to hear the suggestion that we can deal with quite the most difficult and sensitive of cases in the shortest period of time. Maybe we should just brand parents ‘bad mother’ across their forehead when their first child is taken away so that we can fast track them through to adoption when they deliver their next child? You see what churlish mood I’m in? I’ll stop now before I say what I really think.

Also worth a read are Law Society Gazette’s interview with Carolyn Downs (interesting take), and Catherine Baksi’s summary of the same.

I’m off to do some work. And some deep breathing.

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Alas, this is not the beautifully crafted discussion piece I had wanted to post, but I cannot devote as much time to this as I would like, and so I offer it as your starter for ten in its slightly disjointed and unpolished form…

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Firstly, let me explode the myth that the outcome of care applications is inevitable and that therefore care proceedings are purposeless.

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Almost all care applications result in orders of some kind. Most result in permanent or long term removal, many in adoption. Only a very few are withdrawn because the evidential hurdle of threshold cannot be met. In that limited sense applications made are by and large justifiably made (The alternative viewpoint is that almost all applications succeed because the courts are a mere rubber stamp – I don’t subscribe to that view).

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But many applications result in different orders than originally anticipated or sought (supervision orders, residence orders or special guardianship orders) or with less draconian care plans (care order with a placement at home, a plan for eventual rehabilitation, a change in placement type, or identification of more suitable carers, more structured or substantial support package for parents or child, proper financial and support package for kinship carers). These changes in plan and outcome are on one level matters of detail, but it is in matters of detail that long term outcomes for children and families can be radically altered – the chaos theory of family law. Complaint was made at the review session that there is an increasing tendency for courts to micro-manage care planning and that this is inappropriate. In the first place I don’t think that this is an accurate representation of the law or of practice. But really, why shouldn’t care plans be scrutinised? If they are appropriate and properly thought through there will be no problem – detailed scrutiny is necessary where, as is sadly often the case, they are ill thought through or poorly justified. The extent to which courts scrutinise the detail of care planning is in direct correlation with the quality of the care planning, and the confidence of the courts in it.

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Court scrutiny, the involvement of a Guardian, appropriate activity on the part of parents lawyers, are all forms of wholly appropriate and effective pressure with which to focus minds and leverage better care planning on the part of Local Authorities. It is tempting to think that if Local Authority care plans achieve approval of the court for their care plans in most cases then we can trust them to do the job without bothering with the rigmarole of expensive and long winded court proceedings. Tempting but foolhardy. There is another line of thinking (that sometimes social workers or other Local Authority employees who have been in the job for just a little too long blurt out loud before they have had time to check themselves – the very jaded are oblivious to the raising of eyebrows all around them): ‘the court process is just jumping through hoops and ticking boxes, court ordered assessments are never successful: it’s just a waste of time’. And there’s the nub of the problem. We all despair sometimes of clients who mess up the hard fought for assessment, but when those who are making decisions about the permanent removal of children from their birth family start from an expectation that the parents will fail, decision making can be and is often flawed. And so, rather than court proceedings existing simply to make miseries of the lives of social workers and local authority managers, they exist to ensure that preconceived ideas do not act as a barrier to rigorous and appropriate attempts to explore ways of keeping children with their birth families before severing ties with them.

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Let this not be seen as a broad criticism of social workers or local authorities. They are stressed, overworked, undersupported, badgered by management (who themselves are under pressures of a different kind), and vilified by the public and the press. They can’t do right for doing wrong and it must feel as if lawyers and courts are all part of the perpetual bombardment of negativity that social workers must endure (not so very unlike lawyers). No reasonable person would expect them to get things right all the time, especially in the feverish climate of post Baby-P and swingeing public sector cuts. There are many pressures on social workers and local authorities in general and the interests and views of local authorities responsible for many children may not always be one and the same as those of individual parents or children. And that is where the court performs an essential role. I can think of many cases where it is immediately apparent on issue that something has gone wrong, and it is through the court process that this is remedied. 2 examples:

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• A case where a very young child was left for almost a year in the care of parents following the unexplained death of her twin sibling but where NAI by the parents was one possibility – it was only upon the belated issue of proceedings almost the appointment of a guardian that safeguards were put in place pending determination of the cause of injury and any possible perpetrator.

• A case where learning impaired first time parents were assessed without reference to their learning difficulties and without any appropriate support to enable them to access support or learning or understand what was required of them being put in place. They failed the assessment, and another more appropriate assessment had to be commissioned, causing delay, anguish and wasted expense.

There are many more.

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I don’t suggest that the motivation of social work professionals is anything other than genuine and child focused (with the odd bad apple as is the case in any walk of life), but the court process is an important driver in ensuring rigour of approach, proper investment of resource and forward planning, as opposed to firefighting. And rather than disempowering or frustrating good social workers, the process is beneficial to Local Authorities because their judgment is validated.

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The healthy challenge to care planning and social work that court proceedings entail come not just from parents’ lawyers intent on filling their pockets by stringing things out, but from Guardians and children’s solicitors too, and even from the Official Solicitor on occasion when acting for hard done by parents. These are people who are motivated not by ‘parent’s rights’ without regard for the needs of the child, but who are seeking further thought, deeper thinking, reappraisal by local authorities in order to ensure the best outcomes for children. And it is a combination of the hard work and dedication of social workers and other agencies along with the involvement of the court and the court based professionals that ensures better quality outcomes for children.

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Although the role of Guardians is itself something of a hot potato at present, the role of the Guardian as an inherent part of the court process is crucial (see Jacqui Gilliat’s excellent summary of why).

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But it’s not just about detail:

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Its about the big issues too. It’s about public confidence in the administration of justice – already very low, but (notwithstanding a widespread perception by a certain number of parents and parents campaigners that the judiciary are part of a grand state conspiracy to snatch children from the bosom of their families) it would inevitably plummet to new depths if there were no independent external scrutiny of a local authority’s powers.

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It’s about proper limitation of the powers of the state – the most draconian of powers that the state has are to imprison us and to take away our children. If those powers are not routinely subject to the scrutiny of an independent court what is left? It would be an odd kind of civilised society where those in dispute over contracts and road traffic accidents could call upon the court’s protection whilst children could be taken away from their parents forever without expectation that a judge would have authorised that life altering course. How do we explain that to our children?

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It’s about following through on our commitments to the fundamental human rights of both child and parent – our rights to family life without interference except where necessary for the protection of children, our rights to fair trial, a child’s right to life. The need to save costs does not render these fundamental principles dispensable, we cannot put fundamental elements of the social contract in suspended isolation during times of financial hardship.

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Local Authorities would be foolish to think they can get it right all the time, and recent history tells us that they do not. We should not kid ourselves that they will be able to do so in future without the watchful eye of the court upon them, and with 25 – 40% less available resource. What’s more, it would be wrong to burden Local Authorities and frontline social workers (who are so often decried as baby snatchers by the ill informed) with such weighty decisions without the protective ratification of the courts.

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There are ways – many ways – in which the system could be improved. But the prospect of the unfettered removal of children by agents of the state is frightening in the extreme.

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It is difficult to envisage what alternative framework is in the minds of the review panel – whether safeguards would be in the form of judicial review of a local authority or some form of tribunal. It is not immediately apparent what economic sense the creation of a separate and less skilled tribunal would make (recent policy has been to consolidate court management and tribunals into fewer and larger organisations), and it is hard to see what advantage such tribunals would present over magistrates or judges. The key distinction between a court and a tribunal is the availability of legal representation and the expertise of the decision makers (and no doubt in family cases the appointment of a Guardian). Those are crucial features which cannot be abandoned without significant consequences for public confidence in the administration of justice, an almost inevitable breach of Article 6 rights to a fair trial by failing to ensure access to justice, and poorer outcomes for children and parents.

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Whilst a number of results have yet to be announced and large numbers of solicitors are likely to appeal decisions refusing them contracts, it seems highly likely that this green and pleasant land may be undergoing something of a desertification as far as access to justice is concerned…

(Thanks to Provincial Solicitor for reminding me that I needed to post on this topic)

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Today I came across this one: Family Law Decisions. It’s a professional looking and streamlined website and I have no reason to think they do not match up to the promises set out there, or that they mislead in any way. But there are key differences between what you can expect from a non-legal support service of this kind and from a lawyer or law firm.

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Services like these tread very close to the dividing line between non-legal advice and support on the one hand, and legal advice and representation on the other. There are risks in my view, of obtaining legal services from non-lawyers. And when one scrutinises this and other similar services this is at heart what is offered. First hand experience does not necessarily equip one to provide impartial and legally sound advice. Emotional over-involvement can make for poor judgment: empathy is intoxicating for both client and adviser.

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Family Law Decisions website offers the following services:

• Guidance on options
• McKenzie friend in Court
• Drafting documents (identified as pleadings, skeleton arguments, submissions)
• Lay advocacy
• Advice on procedure and law [my italics]

Wait a second: didn’t it take me three years of postgraduate training and years of on the job practise to get good at just those things? That someone would hold themselves out as competent in the skills listed above without any formal training makes me a teensy bit anxious. Without a shadow of a doubt, had I tried to carry out my job without undergoing training and shadowing (pupillage) I would have made a right old b*lls up of it, to use the vernacular.

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Family Law Decisions is not unique in packaging itself in this way, as a range of services offered by non-lawyers, but I use it as an example. For the provision of these services they charge £40 per hour. Nice work if you can get it I say: it compares quite favourably with the rates of pay for legal representation by qualified lawyers on legal aid.

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Does it matter if the person helping you with your case  is not a lawyer? Perhaps. There is a fine line here. Under the Legal Services Act 2007 it is an offence to carry out reserved legal activities unless you are authorised or exempt. The conduct of litigation and exercise of rights of audience are so reserved. But, under the Act there is no regulation of the provision of the services listed above (they don’t seem to fall into the definition of ‘conduct of litigation’) and it is not an offence to provide them (Where a judge gives a McKenzie a right of audience in a particular case they are exempt). So there is no legal obstacle to say Family Law Decisions should not operate in this way on an unregulated basis -i.e. without scrutiny from the Law Society, Bar Council, LSB, Ombudsman – nobody.

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I’m not knocking the valuable assistance McKenzies provide many who cannot afford a lawyer or who are ineligible for legal aid. But if you can pay £40 per hour for unqualified advice, unqualified representation (which might not be permitted on the day) and for the drafting of legal submissions and other documents by unqualified persons well – why not spend that £40 an hour on proper legal representation?

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The answer for some lies in their lack of faith in the legal profession – steer clear of lawyers at all costs, they are crooks (or so it goes). But think about it: If your solicitor or barrister provides an inadequate professional service or is negligent you can pursue that via a claim, safe in the knowledge that their mandatory professional indemnity insurance will not leave you high and dry and / or via the relevant regulator. What happens if your unqualified lay representative, adviser or draftsperson messes up? Yep, have fun with pursuing redress there.

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And think about this.  Family Law Decisions says in its FAQ section that:

I want to limit or stop the other parent spending time with our children, will you help me?

No (generally). We passionately believe in doing what is best for children. Research supports our view that shared parenting or near is best for children. Unless there are proven or likely to be proven risks of harm to children we will not assist in limiting or stopping children’s time with another parent. See our Children page for further explanation of shared parenting.

All fine and dandy – such a policy is their prerogative and it is clearly set out on their website for all to see. So fine and dandy – if you happen to share that ethos. And if you can persuade them of the risks of harm to the children. What if they don’t like the cut of your jib or just don’t believe you? What if you decide half way through a case that you can no longer support shared parenting for your child  - will they leave you high and dry? There is no cab rank rule to stop them picking the cases they fancy and the section 188 Legal Services Act 2007 duty to the court to act with independence in the interests of justice does not apply. No legal training and no ethical training either. None of which means they will act in any way inappropriately, but the point is that you have no safeguards to ensure that they do. If you are happy to rely on a few testimonials that’s your risk to take.

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The positive potential is for a client whose case fits well with the ethos of the organisation, to enjoy a wholly supportive experience from people who will go that extra mile to support the principle in question, where solicitors with an eye on questions of cost benefit and means / merits tests would wave goodbye. But there is limited legal protection for you if your experience is less than satisfactory.

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Lest there be any misunderstanding, I’m not being critical of the service provided by this particular organisation, but it is important to think before engaging the services of non-lawyers – especially if this is on a ‘paid for’ basis – about the reduced protection and lack of formal training and regulation may mean. It might look like a cheap way of achieving an approximation of legal advice and representation, but as outlined above it is in some respects very very different.

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Be aware that if you are engaging an organisation with an agenda, such as the agenda for shared parenting referred to by Family Law Decisions, there is a risk that your interests as client may be subjugated to the pursuit of the agenda. And whilst many McKenzies are undoubtedly experienced, articulate, and forceful negotiators, I would be wondering if at £40 p/h I was paying for the provision of a professional service or a campaign levy.

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I know that there are many litigants out there who have had or expect a poor service from lawyers or the family justice system (see for example my previous post on Solicitors from Hell) and I am alive to the suspicion and distrust with which we are often regarded. Sometimes that is because a client has had a genuinely poor service. But my distinctly non-legal advice is this: enlist the support of non-lawyers by all means but do go into it with your eyes open. It’s not necessarily an antidote to the perceived corruption of lawyers or the system in which we work. And at £40 p/h it could burn a hole in your pocket worthy of any aspiring fat cat.

Binary Law thinks small is beautiful, but I wonder how many small legal aid firms are feeling the same? Small is vulnerable I think.

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Previously, you will recall (or perhaps not): parents who were eligible for public funding or who would suffer hardship if they had to pay were paid for via funds devolve to CAFCASS. CAFCASS would pay providers of Parenting Information Programmes (PIPs) directly to provide services to the publicly funded or poor. And the rest just had to pay for themselves. But as it turned out this was a bit too complicated for anyone to be bothered to disentangle and so the courts were not making Contact Activity Directions. Hence the new arrangement: step 1 the court orders a party / parties to attend, step 2 the DCSF pays (or DofE or Michael Gove himself for all I know or care) no questions asked. Easy peasy, no excuses.

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I must admit to feeling quite pleased when I worked this out. Not least because I only found out about the changes to the rules when I came across the SI that revokes the power of the Secretary of State to fund these courses. Gaaa!! Reading the new SI in isolation one could be forgiven for thinking (please forgive me) that the Government had simply decided to make all Contact Activities self funding, which would really have rendered sections 11A to 1ZZZZZZ gloriously pointless. However, being a thorough sort of legal researcher I did not stop there. I lawtelled and lexised (are these verbs? or trademarks?) furiously but without joy. I sifted through the ‘always seems to be ever so slightly out of date’ CAFCASS website which did say that all courses were free as of 1 April. But (bless them) the CAFCASS website is not always 100% reliable, and so I sought more evidence… The DCSF / DofE frankenstein of a website was less than useless, I was confronted with pictures of a glowering Gove at every click. And in the end, as is so often the way, it was not my paid-for-through-the-nose subscription service but the power of Google that came to my aid and revealed the explanatory memo to snappily titled ‘THE CHILDREN ACT 1989 (CONTACT ACTIVITY DIRECTIONS AND CONDITIONS: FINANCIAL ASSISTANCE) (REVOCATION AND TRANSITIONAL PROVISION) (ENGLAND) REGULATIONS 2010′ which really tells you all you need to know.

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That memo promises legal practitioners will be provided with updating information but I’m darned if I can remember being told this was changing and there is certainly no evidence of any press release by the DCSF on their website.

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Do we think that once awareness of the changes trickles into the general consciousness there will be an enormous clamour for places on the PIPs and DVPPs? Probably not, there are still 100 other reasons why these orders are not often made, but at least it is no longer 101 reasons.

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P.S. Mediation will I think continue to be funded by the LSC as before.