Monthly Archives: October 2013

Family Law Reform: Some Missing Views ? by Rebekah Wilson

There are a lot of important views from the top to consider in family law at the moment, View from the President’s Chambers (available online). And more recently an interview with the President himself in Counsel Magasine (Justice Delayed is Justice Denied, Chris McWatters talks to Sir James Munby, Counsel October 2013). The views of Sir Justice Munby are clear and forcefully put. In essence they are, swifter conclusion of care cases- 26 weeks and a streamlined single family court. Who can disagree with him that , “justice delayed is justice denied” (Counsel interview).

However I fear there is another view not being talked about so forcefully within the reform of family justice and in particular care proceedings. These are the views of the current Lord Chancellor, Mr Chris Grayling. The Government has decided that the current fixed fees in family cases, including public law, do not provide value for money and they will be introducing a further 10% reduction (https://consult.justice.gov.uk/digital communications/transforming-legal-aid-next-steps/supporting_documents/transforminglegalaidnextsteps.pdf). 10% may not seem huge to an outsider. But to a solicitor practising in the area, it is a margin which may well mean that they can no longer provide that service. There has been no increase to their fees in this area since 2001 only reductions. The concern is that without considering this view in the quest to speed up care proceedings then justice itself is not delayed but possibly absent altogether.

Barristers and Solicitors who undertake care cases, those cases that involve the most draconian order of all, compulsory adoption and often acting for some of the most marginalised in society, are being asked to do more and more for less and less. A further 10 % reduction to solicitor’s hourly rates in care cases and a further reduction to experts fees as envisaged by Transforming Legal Aid (available online) will mean that the necessary dedicated expertise of the professions will not be available. As Lord Neuberger rightly points out, “.the great majority of lawyers who do publicly funded work do not make very much money.. (Justice Tom Sargant Memoriall Lecture 2013). And for those of us who can’t afford to offer our professional expertise as a hobby the further cuts to legal aid may be fatal. Fatal not to the lawyers ( we can do something else) but fatal to the children whose lives are being determined.

Sir James is of course absolutely right to rid children at the centre of care proceedings of any delay to the proper outcome of their case. He recently observed that,

“We do not envisage that proper compliance with what we are demanding, which may well impose a more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statute, that care cases are to be concluded within a maximum of 26 weeks” (Para. 44, Re B-s (Children) (2013 EWCA Civ 813). The problem is that the burden is being placed on practitioners in the context of drastic cuts to legal aid and so the ability for proper compliance by expert professionals is hard to envisage.

For a powerful reminder of what is at stake in these cases,

“family ties may only be severed in very exceptional circumstances and…everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing” ( YC v United Kingdom (2012) 55 EHRR 967, Para 134).

And so I conclude with a sum. The total basic fee for a solicitor of a care case involving one child £2237.00 – 10% ( a 10% reduction to that – on top of no fee increase since 2001) + 26 Weeks (the need for speed) = INJUSTICE ? We should consider some other numbers too, the rates of adoption breakdowns and failed special guardian placements. And most important of all we should look to the children affected by these reforms and ask them what their view is.

Rebekah Wilson (Garden Court Chambers)
24th October 2013
The view expressed in this article are the views of the author alone.

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Re BS and Experts

The recent case of Re B-S is clearly having a significant impact on the courts approach to care proceedings, and in particular whether or not they should rigidly stick to the 26 week rule. It also seems to me that Re B-S must have an impact on the courts approach to part 25 applications for experts.

With the introduction of the ‘necessary’ test in part 25 applications, it has become much tougher to succeed in those applications. But if one looks at Re B-S, and in particular paras 25 to 28, which make reference to Lord Neurberger’s speech in Re B, it is clear that where the local authority’s care plan is for adoption, then the court is under a duty to consider all options in order to try and keep the child in the care of the birth family before making a placement order. Of course it is unlikely that on day 12 of the new PLO, that that the care plan will be for a placement order. But given the current climate where adoption is perceived as a preferable alternative to care, then it must be anticipated that this is a likely position that the local authority will take. So when making a part 25 application that may not on the face of it seem necessary – for instance where a local authority have conducted a pre birth assessment of the parents and concluded they should be ruled out, Re BS should come into play, especially if the initial assessment isn’t as thorough as Re BS indicates the quality of the local authority evidence should be in considering placement options.

It is also clear that Re B-S assists in applications for an ISW assessment of SGO applicants, even if they come forward as a late stage – as ‘the court “must” consider all the options before coming to a decision (para 27).

Chris McWatters

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