Go to the barricades
Family analysis: Maud Davis, member partner at TV Edwards LLP and co-chair of the Association of Lawyers for Children, discusses how the recent reforms have affected her practice.
What are your views on the quantity and pace of recent reforms?
The current reforms began with the Carter Report on legal aid in 2006, when the government of the day wanted to reform a system in which a significant percentage of legal aid money was spent on a few, complex criminal trials. That seems to have been forgotten, with successive governments making sweeping cuts to all areas of legal aid, with no apparent concern for access to justice, the quality of the work done, or the future of the legal profession - all necessary in a healthy democracy that respects the rule of law.
To put this into context, public sector expenditure for 2013/14 is almost £673bn. The civil legal aid budget - £887m - is 0.13% of that total. That relatively insignificant percentage suggests that the cuts are for reasons other than reducing the national debt. It is particularly troubling that successive governments have not seemed to be interested in engaging with the professional and representative bodies in deciding on how to manage legal aid expenditure. For instance, the Law Society put forward an alternative plan for making legal aid savings without endangering the supplier base, but that was ignored. Claiming that this country spends significantly more on legal aid than other, comparable jurisdictions is also questionable when one examines more closely the total costs of other legal systems, including how they account for the cost of running courts.
In family law, the recent reforms (resulting from the 2011 Norgrove Report) have been pursued at a brisk pace, if not a gallop, with more to come. All at a time when both branches of the profession face unprecedented challenges as a result of the legal aid cuts, as well as the on-going effects of deregulation. Maintaining quality in the face of these pressures is an enormous challenge.
A major problem concerns mediation. Mediation can resolve some family disputes, but the legal aid cuts imposed in April 2013 have resulted in a reduction in referrals for mediation by 47% since April 2013, with an estimated underspend of £14m in legal aid for mediation for 2013/14. The government seems to have disregarded the fact that, historically, most referrals to mediation were made by family solicitors. If the introduction of compulsory mediation information and assessment meetings (MIAMs) had been made at the same time as the cuts in scope to family legal aid, mediation referrals might have been maintained at or near pre-April 2013 levels, and mediators would have been better able to manage the changes.
In any case, those who do not want to mediate do not have to. Those who can afford the court fee (even if they cannot afford a solicitor or a mediator) may think that paying that is money well spent, to secure access to a judge who can decide their family dispute.
As matters stand, skilled and experienced family lawyers are leaving the profession, voluntarily or otherwise, and will not be replaced. Mediators are struggling to remain in practice and the public is increasingly denied access to justice.
What are your experiences from the front line?
I specialise in family public law work. In terms of my day-to-day practice, there is now enormous pressure on all parties to speed up proceedings to meet the 26-week time limit for care proceedings. It must be right that there should be no delay for children in care cases, but equally the decisions made are likely to affect those children for the rest of their lives. All of us doing this work need to ensure the best possible decisions are made. We also need the resources to enable us to achieve that, starting with local authority children's services. The proper implementation of the 2011 Munro review of the English child protection system has to be the basis for improving standards of social work.
The case of Re B-S (Children) (Adoption: Application of Threshold Criteria)  EWCA Civ 1146,  All ER (D) 145 (Sep) has been extremely helpful to practitioners in setting out how the recent reforms in public law are to be applied, so as to ensure justice is done in individual cases, notwithstanding the 26-week time limit.
Ensuring that any necessary expert assessments are produced within the 26-week timescale, while maintaining the quality of the work, is a continuing challenge. The changes in the remuneration of experts through legal aid have reduced the numbers of suitably experienced experts willing to work at legal aid rates. It is unsurprising that the government would want to limit (and control) the payment of experts in legally aided cases. However, this has led to increased bureaucracy, and delays in decisions being made. Added to that, a formal application (with a fee payable) is now needed, adding to the cost.
It is not unusual for local authorities to pay the difference between legal aid rates, and the actual cost of an expert, to avoid delay and ensure the right expert is used. That still involves paying public money, so it is difficult to see, ultimately, where the savings to the public purse will be made.
There is still automatic legal aid in care cases for those with parental responsibility, so litigants in person (LiPs) are not as prevalent as in private law family disputes. However, there can still be issues. I was involved in a care case in which we had to attend court on three separate days, over several weeks, before a decision was made in an interim application--purely because there were other cases being heard, involving LiPs, that took up all the court's time. In my case, there were four parties, all funded by public money (through the local authority and legal aid) as well as the cost of the judge, court staff, and the issue of delay to the proceedings. Again, it is difficult to see where the savings to the public purse will be made, leaving aside the question of fairness in expecting lay people to present their own cases in the family courts.
In London, the introduction of the single Family Court is still being implemented - with the permanent premises for the East London Family Court not available until September 2014. Administratively, however, it has to make sense to have a unified court system for such a distinctive and specialist area of law. I remain interested to see how the former family proceedings court legal advisers will be used, and their skills developed, in the single family court.
Court listing for public law cases has not been too badly affected in London, but this has been at the expense of private law and money cases, where there can be months of delay.
How successful have the reforms been in achieving their objective?
The Norgrove reforms aimed at creating a family law system that is truly a system--one that is capable of timely and final decision-making, and that works efficiently and consistently. In public law, work began well before the statutory introduction of the reforms in April 2014. For instance, the Tri-Borough pilot in London showed what local authorities could do to reduce delay while maintaining quality (although the point has been made that the boroughs involved are relatively wealthy). The Family Drug and Alcohol Court (FDAC) has shown how a 'problem solving' court, with a specialist assessment team attached to the court, can result in positive long-term change for families.
A measurable effect has been the reduction in the timescale for care cases, with some major reductions across the country. However, there are still differences, which suggest it may not be possible to achieve uniformity and consistency of approach - particularly when the circumstances of a case can vary so much. Major urban areas are more likely to have diverse populations, with issues as to culture, language (and the need for skilled interpreters), and international issues, as well as serious poverty. Rural areas face problems with transport (and isolation), the spread of resources, and--in some areas, such as East Anglia--the sorts of international issues more usually found in urban areas.
The legal aid cuts to scope have meant that there is no legal aid for most areas of family law. The supposed safety net provided by exceptional funding has been shown to be completely inadequate. The rules in relation to legal aid for domestic violence cases have - as predicted by the representative and professional bodies - led to inconsistencies and unfairness to alleged survivors as well as alleged perpetrators, and their children. Before the April 2013 cuts, child protection issues that might arise in private law proceedings could be referred to the local authority. Now, those issues are more likely to remain unrecognised.
What has all this meant for clients?
For clients, including child clients, in care cases, the changes resulting from the Norgrove report should lead to improvements, particularly in terms of timescales. However, it is up to experienced, specialist lawyers to ensure that the appropriate evidence is before the court, that the standard of decision making is high, and that justice is done.
In private law, the situation is troubling. Not just in terms of the legal aid cuts, but also in terms of what the family justice system can offer to help resolve family disputes, for the reasons I have mentioned. Children, in particular, have no voice if they are not represented in private law cases, and are not seen by anyone (such as a Cafcass officer, or a judge) who can independently ascertain their wishes and feelings. The recent speech by the Minister of State for Justice and Civil Liberties, Simon Hughes, at the Family Justice Young People's Board, was encouraging, but we need to see how his proposals are implemented.
What are your thoughts on the future shape and pace of reform?
The pace is unlikely to moderate. However, some time will be required to see how the reforms have worked, and what adjustments are needed.
The issue of transparency, publicity and media access to the family courts, raised by the President of the Family Division, is an important area of debate for everyone working in the family justice system. For me, the effect on children of greater involvement by the media is crucial. When asked, children and young people have consistently voiced their opposition to media access to the family courts in which the intimate details of their family lives are considered. In the context of the internet and social media, with postings remaining accessible indefinitely, their concerns are wholly understandable. For those (including social workers, children's guardians, and clinicians) working with children in the family justice system, warning children and young people, from the outset, that the media may be present in court and report on the case, has to be a professional duty. The risk is that children and young people, in the face of such a warning, will decide to say nothing.
More positively, there is research evidence to support the increasing use of the FDAC 'problem solving' approach, both in terms of outcomes and cost. Both government ministers and the President of the Family Division have given their support to the development of FDACs throughout the family justice system. A major issue will be funding. If local authorities alone are expected to pay for FDACs then, in the current climate, that would be at the expense of other spending. Pump priming by central government is likely to be needed (as happened when the original FDAC was set up), while the eventual costs savings feed through.
The private law reforms, and the introduction of the single family court, are still very recent, and need to be better understood.
Money cases are next on the President's agenda, and clearly need attention in the context of all the other changes as well as in terms of listing.
Divorce is also on the President's agenda. There is, ordinarily, now no legal aid for divorce, but the current process is complex and lengthy. A move to a simplified, and genuinely non-fault based, system for divorce would be welcome.
What other challenges are family lawyers facing at the moment?
The main challenge concerns the commercial pressures on family lawyers. While many solicitors have introduced fixed fees for privately funded family work, there will always be people who cannot obtain legal aid (because the work needed is out of scope), but who also could not afford a fixed fee, however keenly priced.
With regard to legal aid work, in particular, the trend to employ paralegals is likely to continue, allied to a reduction in the availability of training contracts or pupillage. That will affect the demographics of the profession, both in terms of age and diversity - I think, for the worse.
Workloads (for everyone, including social workers and children's guardians, as well as lawyers) seem to be increasing inexorably. That is a major threat to standards, as well as being, in my view, a health issue for those involved in what is, by any standards, demanding work.
In terms of care work, over the last 18 months, international issues have increasingly arisen, and care lawyers need to understand how international law may affect care cases. With an increasingly mobile global workforce, that is likely to be a permanent feature.
Do recent and current reforms indicate any emerging trends?
The commoditisation of the law seems to be a consistent theme, in terms of attempts to standardise practice and procedure, as well as the implications of such drastic (and on-going) cuts to legal aid rates. While that may work for more standard types of work (for instance, obtaining a decree of divorce), it is not well suited to most areas of family law, public or private, where judicial discretion is such an important element.
In terms of private law, the family courts appear to be increasingly unavailable to help resolve problems, irrespective of any funding issues. Anyone who has had to deal with protracted disputes about whether a child should be returned at, say, 6am or 6pm from contact (or 'time spent with' the other parent) would probably agree that the courts should not have to deal with that level of detail. But the family lawyers I work with have, for years, diverted parents with that sort of problem from the courts. Mediation will not work in every case, notwithstanding compulsory MIAMs, and family judges will be needed to resolve some private law disputes. The right of children to have their voices heard remains an issue, and the possibility that hitherto unidentified child protection issues may exist in private law cases.
What are your predictions for future developments?
There are more legal aid rate cuts to come. The major challenge, if lawyers feel able to carry on with legal aid work at all, is the maintenance of standards. There is a limit to what can be achieved by the use of IT--but IT is always developing, and we have to keep abreast of those developments in case they can help with efficiencies.
Deregulation will not be reversed. This is in the context of increased expectations on the part of clients, who are more 'consumerist' in their approach, more likely to shop around for value for money, and more likely to complain if they are unhappy with the service they receive. That is understandable. I firmly believe that lawyers from both branches of the profession need to compete on the basis of the professional service we provide, and that 'value for money' does not mean 'cheapest'. However, family law services are a distress purchase, like root canal work, and we often have to give unpalatable advice to already upset clients. However, one provides a customer with what they want, and a client with what they need - very different things, presenting very different challenges in terms of managing expectations.
The media is unlikely to give up its pursuit of greater access to the family courts, including access to court documents, and a wider ability to report family cases. As long as the commercial media faces increasing financial pressures, and the family courts can provide free copy with marketable scandal and salaciousness, they have every incentive. And as the old Fleet Street saying goes: 'We don't want it good, we want it now.' We cannot rely on the media for accuracy, when what are now 'child arrangements' are still routinely referred to in the media as 'custody' and 'access'. Social media carries with it the even greater risks of the wholly unregulated publication of details of family cases. We must keep in mind our duty to our clients, including our child clients, and their entitlement to privacy.
All of that said, family law work is endlessly fascinating. I work with fantastic colleagues, inside and outside my firm, as well as guardians, social workers, and clinicians. I would not want to do anything else.
Maud Davis is a member partner at TV Edwards LLP, specialising in children law, accredited to the Law Society's children panel, and with higher rights of audience (civil). She is co-chair of the Association of Lawyers for Children; a committee member of the Interdisciplinary Alliance for Children; a member of the London Local Family Justice Board; a member of Resolution and an associate member of BAAF. In this interview Maud is commenting in her personal capacity and the views expressed are her own.
Interviewed by Kate Beaumont.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.