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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