About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Friday, 3 October 2014

Abstracting electricity

I have it on good authority (Judge Altman) that practitioners are allowed to use electric points at the Central Family Court at least! If you have any problems with staff telling you otherwise drop me an email.

Tuesday, 1 July 2014

Experts - directions

Re F (A Child) [2014] EWCA Civ 789


The Court of Appeal further established that in future every order directing the instruction of an expert, whatever the discipline, should contain an express recital to the effect that:
"The court is satisfied that the appointment of X is, in accordance with section 13(6) of the Children and Families Act 2014, necessary to assist the court to resolve the proceedings justly."

Tuesday, 6 May 2014

Re the quickly, smoothly, efficiently introduced reform

A Central London LA reports that they have the new application forms but they are not able to save or email it. they have to print it off & scan it.

Does anyone have forms / CMOS etc which work?

Re the quickly, efficiently and smoothly introduced reforms

From the East London Family Court

We are having some technical difficulties at present with some of the orders that have been emailed in to us. I think this may be due to the old version of the draft case management order being used and therefore being incompatible with our systems (even though it was created by us).

Could you please be so kind as to circulate the version I have attached to anyone completing and filing the CMO including Counsel so that we ensure you get your orders in the correct manner and in an expectable amount of time, without our clerks pestering you and Counsel to re-draw the order. I'm afraid there is no other way around it.

Can you also please ensure that if we need the orders re-typed on this version that you DO NOT copy and paste. This creates the same problem as we are currently experiencing. I'm afraid the CMO must be completed from scratch.

I'd like to thank you all for your assistance with this and hope that within the next month or so this version should have filtered through and we should no longer be experiencing the current issues…..and instead of wasting time fiddling with these drafts we can get on with some more important work!!!

Thursday, 24 April 2014

Judge Joanne Harris

I am so very sorry to be writing this blog post and sorry too if this is how you learn the sad news that Judge Joanne Harris has died. I wonder how much more she could have borne of a life in which she was cruelly robbed of three of her great pleasures (see this piece she wrote recently for the Guardian) and for that reason and that reason only I am thankful it is over. Along with a huge number of friends and family members, I will miss her greatly and think of her often and she will remain the centre of a network which she knitted together and nurtured. I am grateful to those who took care of her in life and through her illness so that she knew she was loved. She was a great friend to me particularly during our years of studying together for the CPE & Bar (which often involved lots of her 3 great pleasures - hours of heated legal debate (which she usually won, especially if it involved land law), a bottle of red wine & a slice or two of her piece de resistance - spanakopita pie!). She was kind, funny and sharp, qualities that made her a much respected and liked tribunal as well as friend. Her strength of character was sadly tested by a number of challenging life events and it was not found wanting. Despite this she managed always to have compassion for those who were not so capable. I take inspiration from her example. Life is short but it is for living. Don't waste a second and fill it with love.

Friday, 18 April 2014

Reform School

"I have no desire whatever to reform myself. My only desire is to reform people who try to reform me. And I believe that the only way to reform people is to kill 'em.”

You may come to the view that this is the philosophy underpinning the quick, smooth & efficient family justice reforms.

Here are some resources which might help.

Children & Families Act 2014

Guide to the new statutory instruments & where to find them

The revised Public Law Outline

Practice Direction on Bundles

Article on Family Law Week by Jennifer Kotilaine re public law reforms

John Bolch's comprehensive links page over on Family Lore

Zoe White's Summary on Marilyn Stowe's blog

Law Society Family Court Resources Page

Geraldine Morris's 10 Things You Need to Know about Family Law Reform

Preparation for the Single Family Court

What You Need to Know about the new Family Court Forms by Kirstie Gibson

Family Law Hub's Guide to the Family Justice Reforms for Divorce & Finance

Revised FAS form

Comments re bundles on Suesspicious Minds

Wednesday, 19 March 2014

Exceptional public funding

Picking up on my last post, in D v K and B [2014] EWHC 700 the court has asked that the Legal Aid Agency think again about treating the case as exceptional and granting public funding. Apparently even the following points have not yet persuaded them:


i) The seriousness of the allegations involved.

ii) The fact that if these issues were before a criminal court the Father would be prohibited by statute from cross examining the Mother in person. That is as a result of s34 of the Youth Justice and Criminal Evidence Act 1999.

ii) The allegation of rape is one of a number of serious allegations that are made. Any analysis of that allegation would have to be placed in context. I find it very difficult indeed to envisage how a judge asking questions on behalf of Father would be able to do so in a way that he felt was sufficient.

iv) Fourthly and notwithstanding the provisions of Schedule 10 of the Crime and Courts Act 2013 (which I have considered, although they are not yet in force) taking into account the point that I have made in iii) above and the fact that the judge could not take instructions, I have difficulty in seeing how that statutory provision in Schedule 10 would be perceived as sufficiently meeting the justice of the case.

v) Where allegations of this seriousness arise it is very important that the respondent to the allegation is given advice. That advice cannot be given to him by the judge and could not be given to him by the representative of the guardian.

vi) The issue that arises is of very real importance to the two adults but also to this child. If the Mother's allegations are substantiated there is a very real prospect that they may prove to be definitive of the relationship between this child and her Father.

vii) In fact finding cases of complexity a judge is expected to give himself full and correct legal directions. It is vital that those legal directions are correct and take account of the positions of both of the parties immediately involved.

viii) Although enquiry might be made of the Bar Pro Bono Unit or indeed of the Attorney General to see whether arrangements might be made for D to have free representation or the Attorney General to act as amicus curiae neither of those solutions presents itself as likely to be available and neither is anywhere near as satisfactory as D having his own representation. I regard it as highly unlikely that either avenue of enquiry would produce representation in any event. In March this issue was being investigated further.

ix) As to the position of the Guardian's representative everything that I have said about the position of the judge applies in at least equal measure to the guardian's solicitor if not more so. The guardian's statutory role is to promote the welfare of the child. It is no part of the roles of the Guardian or of the children's solicitor to adopt the case of one party in cross examination or argument. After the fact finding case is resolved it is essential that both parties retain confidence in the guardian and in the institution of CAFCASS. I therefore cannot see that the Guardian or the child's solicitor could be expected to conduct cross examination on behalf of this Father.

Crossing the lines: Re C (2013) - procedural fairness


I thought I would offer a reminder about a case which has recently become very dear to my heart: Re C 2013 EWCA Civ 1412 and which gave rise to a number of interesting points about the way in which litigants in person could be better supported. It also shows that lines will be considered to be crossed when complainants in criminal proceedings will be compromised as independent experts

Incidentally this is one of the few cases last year where public funding was granted on an exceptional basis. Needless to say the father did not get public funding for any of the follow up:

Ryder LJ found that there had been a number of procedural irregularities throughout the proceedings which caused the decision to be unjust and wrong:

* Evidence that was adduced orally at a without notice hearing was not recorded on the face of the order, nor was a direction made that that evidence be transcribed or contained in a statement to be served on the respondent. Rule 18.10(2) FPR 2010 requires the service of evidence on a respondent in support of a without notice application unless the court orders otherwise. A respondent's right to set aside or vary a without notice order must be contained in a statement on the order (rule 18.10(3) ) which was not contained in the without notice order made.

* No explanation was given as to why the respondent's right to set aside or vary the without notice order was constrained to having to give 24 hours' notice.

* There is a need for exceptional urgency to justify a without notice order being made. There was no evidence within these proceedings of what was the pleaded exceptional urgency.

* The pre-application protocol for mediation information and assessment (PD3A) was ignored in its entirety. This protocol is not optional.

* The family court advisor became a complainant in criminal proceedings, as a result of the father's behaviour, following which he was arrested and charged with offences under section 4 of the Public Order Act 1986. It was wholly inappropriate for the family court advisor to continue to advise within the proceedings.

* The family court advisor filed a report which detailed allegations of fact by the mother against the father previously unknown to the court. It read as if the allegations were true and there was no doubt that the family court advisor believed them to be true. It was not highlighted that the facts had not been established by way of a fact finding.

* On the day of the contested welfare hearing the family court advisor filed and served a chronology of events without notice of intending to do so and without direction by the court. It was a detailed schedule of hearsay evidence. It should not have been admitted without argument as it was highly prejudicial and of questionable probative value.

* At the contested welfare hearing the family court advisor gave evidence from behind a screen. Although it was not inconceivable that a professional witness might require such assistance, an application on notice to the parties with full reasons as to why this was required should have been made.

* The assumption of alleged facts against the father when no fact finding exercise had been conducted resulted in the judge's welfare evaluation being based on a false premise.

Friday, 28 February 2014

RE N-L Post 3 of 3: Pauffley J on triage assessments and justice before speed

In which Pauffley J criticises the manner of obtaining evidence from an independent expert by means of a paper triage assessment commissioned in haste and without the expert meeting the mother:

29. My reading of the papers prior to the hearing on 28th January revealed causes for considerable anxiety as to whether there had been a fair and appropriate assessment exercise in relation to the mother's abilities to look after NL.

30. The letter of instruction to Dr van Rooyen invited her to undertake "a triage psychological assessment in respect of (the mother) by reading the papers, liaising with the Practice Manager and liaising with [the resource] (as necessary) and report upon (her) findings." She was asked, insofar as she was able, to provide her view in regards to (the mother's) history of drug use, the current treatment she's receiving and her prognosis for abstinence in the future." The second question of Dr van Rooyen invited her commentary upon what (the mother) would need to demonstrate in order to care for NL long term and her progress in achieving these goals. She was also asked to comment upon further advisable treatment and likely timescales.

31. There was no suggestion that it might be necessary for Dr van Rooyen to meet with the mother in order to provide her report. The terms of the letter make clear that what was being requested was a paper assessment supplemented by a telephone discussion with the Practice Manager, [named]. The mother, I should say, has never met [the Practice Manager].

32. Although it had been thought, on the part of the local authority at least, that it might be advisable for Dr van Rooyen to discuss the case with [the resource], her report makes clear she did not avail herself of that opportunity. In evidence, she said, according to the note, "I hadn't because of tight timetable."

33. That last piece of information leads on to consideration of exactly how and within what period, Dr van Rooyen's report came to be prepared. The letter of instruction is dated 31st October 2013. In the section headed "Timetable," it is recorded that the local authority's lead Solicitor understands that Dr van Rooyen was "able to file (her) report by 5pm on Thursday 31st October," that same day. The first hearing in the Family Proceedings court was scheduled for 1st November.

Dr van Rooyen's involvement – fundamental flaws
34. I am gravely troubled by the speed, the manner and the ambit of Dr van Rooyen's involvement. It simply cannot be right, fair or reasonable to commission an expert to provide what may turn out to be the pivotal evidence justifying separation of a neonate from his mother in the way that happened here.

35. It surprises and alarms me that Dr van Rooyen was asked, and was prepared, to provide a report during the course of a single working day, a terrifyingly tight timeframe, and on the basis of papers supplemented by a telephone conversation with a local authority professional who had never met the mother. I struggle to understand how Dr van Rooyen's apparently firm opinions, adverse to the mother, could have been formed given the complete absence of any kind of discussion with her or, indeed, any communication with [the resource].

36. To my mind, it is quite simply unacceptable for an 'independent' expert to be instructed in the way Dr van Rooyen was – to conduct such a scant inquiry in preparation for a hearing which was to have such wide ranging consequences for the child.


Rationale for the instruction
37. The reason why the local authority acted as it did, requesting Dr van Rooyen's assistance in preparation for the 1st November hearing, may be associated with the family justice reforms and the impetus to complete public law cases within 26 weeks. I have not conducted any kind of inquiry into exactly why the instruction for a "Triage Assessment" occurred but gained the distinct impression that this case is not an isolated instance, rather that similar practices have been applied in other proceedings locally so as to assist in ensuring the case achieves a conclusion within its allotted timeframe.

Discussion
38. Albeit in the context of care proceedings where the care plan is for adoption, the President has made it abundantly clear that justice must not be subverted by the requirement that public law cases be concluded within 26 weeks. In Re B-S (Children) [2013] EWCA Civ 1146 he said – "Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority's plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied."

39. More recently, in his 'View from the President's Chambers (7)' entitled "The process of reform, changing cultures" the President reiterated that message saying, "We must always remember that the PLO is a means of achieving justice and the best outcomes for children and, wherever possible, their families. It is not, and must never be allowed to become, a straightjacket, least of all if rigorous adherence to an inflexible timetable risks putting justice in jeopardy."

40. My enduring anxiety in relation to this case is that in the frenzy of activity which preceded the first hearing in the Family Proceedings court, there was too much local authority emphasis upon securing an expert opinion to support removal from the mother and too little focus upon ensuring a just and fair assessment process. Justice must never be sacrificed upon the altar of speed.

Thursday, 27 February 2014

Re NL Post 2 of 3 - Pauffley J on Justices' Reasons

In which Pauffley J directs that any practice involving the local authority preparing the justices' reasons should cease forthwith - with the President's approval:


64. The Family Proceedings Court, so I was informed, does not expect or require that such draft documents are circulated to the parties in advance of the hearing. Legal advisers do not routinely inquire as to whether the parties have received them before the hearing begins. According to Miss Watson, whilst local practitioners know about the court's expectations, none of these practices "sits easily" with the Solicitor members of the Joint Legal Team.

65. Whilst I might be able to understand why such methods may have been developed, I am profoundly alarmed by their existence. Informal inquiries reveal, anecdotally, that the practices I have described are not confined to this area but are widespread across the country.

66. The first matter for emphasis is that every parent is entitled, pursuant to Article 6 of the European Convention on Human Rights to a fair trial.
Article 6.1 reads as follows – "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

67. Seemingly, there were process failures in this case which significantly interfered with the most basic requirements for openness and transparency. There was, apparently, an established but largely clandestine arrangement between the local authority and the court which, to my mind, has considerable repercussions for justice and, equally importantly, the perception that justice will be done. It is fundamental that nothing is sent to the judge by one party unless it is copied simultaneously to every other party.

68. Equally and just as importantly, it is difficult to view the Justices as having been independent and impartial if, as happened here, they simply adopted the local authority's analysis of what their Findings and Reasons might comprise. The Court of Appeal has recently made clear that the wholesale incorporation of such a draft is impermissible: see Crinion and anor v IG Markets Ltd [2013] EWCA Civ 587. As Sir Stephen Sedley observed,

"Unequivocal acceptance of one party's case has always posed a problem for judges. To simply adopt that party's submissions, however cogent they are, is to overlook what is arguably the principal function of a reasoned judgment, which is to explain to the unsuccessful party why they have lost…. (T)he possibility of something approaching electronic plagiarism is new, and it needs to be said and understood that it is unacceptable. Even if it reflects no more than the judge's true thinking, it reflects poorly on the administration of justice: for … appearances matter."

69. Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again.

70. I am reassured that whatever has occurred in recent years, it has not always been the case that, nationwide, local authorities have been required to provide draft 'Facts and Reasons' documents. I know from past personal experience that diligent legal advisers have provided legal and sometimes proper secretarial assistance to Justices in formulating their Reasons. I have been present whilst such judgments have been compiled.

71. Whatever else, it should always be remembered that in public law proceedings the local authority is the applicant. It is not and should never be seen as the decision maker. That is the role of the court. There is no room for confusion. Justice must be upheld. There is no scope for any dilution of that most fundamental concept.

72. The President of the Family Division, Munby P, has read and approved this section (paragraphs 57 – 71) of the judgment.

Can the system cope with this addition to the ever increasing list of factors likely to cause delay?

Wednesday, 26 February 2014

Interim Removal Hearings - Pauffley J in Re NL Post 1 of 3

Pauffley J made some important points in Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam) about the manner in which interim hearings should be dealt with and evidence which will suffice to justify interim removal.

She reminds us of the:

three well known propositions derived from the Court of Appeal's decision in Re LA (Care; Chronic Neglect) [2010] 1 FLR 80 applicable to interim care orders. Firstly, that the decision taken by the court must necessarily be limited to issues that cannot await the substantive hearing and must not extend to issues that are being prepared for determination at that fixture. Secondly, that separation is only to be ordered if the child's safety demands immediate separation (my emphasis). And thirdly, that a local authority in seeking to justify the removal of a child from home necessarily must meet a very high standard – reiterating what had been said in Re K and H [2007] 1 FLR 2043 namely that "…at an interim stage the removal of children from their parents is not to be sanctioned unless the child's safety requires interim protection."

In a similar vein to Black LJ in yesterday's post she did not consider that the disruption to the foster placement argument should carry the day:

NL's move to a foster home on 2nd November is identified as a reason against reuniting him with to his mother. The Justices decided that such a change in his circumstances "may have an effect upon him. NL is very young and needs to form an attachment to his primary carers."

54. I found that evaluation both startling and disturbing. The fundamental principle is that wherever possible, consistent with their welfare needs, children deserve an upbringing by their natural parent(s). It seems to me wholly unwarranted to deploy the status quo argument as part of the reason for continuing an interim foster placement for a week old infant.

55. This case provides a good example of how once separation has occurred there can be a certain inevitability that it will be perpetuated. It is often and rightly said that the decisions taken about placement at the outset of public law proceedings are amongst the most significant. They can be and often are the most difficult. All the more reason, I would say, for immense trouble to be taken so as to ensure those decisions are based upon good evidence and fully justified. Anything less would be to ignore that a child, as the result of what occurs at the beginning of proceedings, may be denied the opportunity, ultimately, of remaining within his natural family.


Tuesday, 25 February 2014

Interim Removal / Separation

Lady Justice Black further considered the issue of interim removal in L (A Child) [2013] EWCA Civ 489. In this case the mother and her baby had already been separated for a period of 2-3 months as a result of a decision which was the subject of challenge. The mother was in prison and wished to care for the baby in the prison mother & baby unit. The local authority were clearly of the view that the mother would not be able to care for the baby in the long term although it did not argue that there would be a short-term risk to the child on the unit.

The court referred to the earlier summary of the relevant principles to be applied in Re G-R (see yesterday's post).

Black LJ held that the court was in principle entitled to take account of the fact that the mother & baby had already been separated and that the mother's wish would entail the child being removed from a foster placement in which he had settled, with the prospect of being separated from the mother in due course, if the local authority's pessimism was well-founded. However, here the District Judge had fallen into error in concluding that the child's emotional safety would be compromised because of the disruption in moving between placements and the likely effect on the proceedings being effectively stayed causing delay before long-term decisions could be made. Black LJ did not consider that these points about emotional harm were captured by the authorities on interim removal / separation.

57. In saying that an interim care hearing was not the place for an evaluation of the longer term position, I am not saying that the district judge had to decline to look at the possible outcome of the final hearing at all. He was required to manage the case procedurally and for that purpose he was entitled, I think, to make a provisional evaluation of it on the evidence assembled so far and needed to do so in order to determine how the case should proceed thereafter. As he recognised, he needed to keep a firm control over the proceedings and had to ensure that in so far as possible the timetable for the proceedings did not get in the way of A's timetable. I agree with counsel for M that the way in which he could properly have minimised the impact of delay on A was to schedule an early final care hearing, rather than taking decisions at the interim care hearing which in my view came perilously close to prejudging the outcome of the case. Depending on the complexion of the evidence by that stage, that early final hearing would provide an appropriate forum for consideration of whether the prospects of M successfully caring for A herself were so poor as to leave no alternative to the making of a final care order or whether there was sufficient optimism to justify a further postponement of the decision or the making of some order which would permit continued exploration of the possibility that A might live with her.

58. In addition to the poor prognosis, as he saw it, for M's case and the delay to the plans for A that would result from the need to test out her good intentions when she came out of prison, what influenced the district judge here was the harm that would be caused to A by disrupting the attachment that had begun to grow between him and the foster parents in order to place him with M now and the chance that A would be subjected to further moves later on.

59. I would not dismiss such disruption to A's attachments and his settled living arrangements as irrelevant but it had to be put into the balance alongside the other factors that were relevant to the district judge's decision and accorded the weight that was appropriate given the Court of Appeal guidance on the use of interim care orders. It may be argued that it is not essential from A's point of view that he goes to live with M now because he would be able to transfer his attachment to her later on if a placement with her were later to be approved by the court. However, looking at the matter from a different angle, there can be little doubt that if M is to have the best chance of caring for him, she needs to have the opportunity to get to know A as soon as possible and to form a bond with him. She was with him for a matter of days only, in the hospital immediately after he was born. He will have been developing rapidly since then and the once monthly contact which the local authority arranged thereafter would not enable M to build up a relationship with him to serve as a foundation for care of him in the future and thereby to improve his chances of being able to live with her.

60. In the short term, there was no danger to A's safety, physical or emotional, in the prison unit and it was inappropriate, as I have said, to class the longer term issues as a danger to A's emotional safety of the type contemplated in the authorities. Accordingly, in my view, the relationship of A and M should have been preserved pending a final adjudication of the issues in the care proceedings. Concern as to delay should have been addressed by making arrangements for this final adjudication to take place promptly rather than by foreshadowing its determination by the making of an interim care order which kept M and A apart. It is for these reasons that I was in favour of allowing the appeal and substituting an interim supervision order for the district judge's order.

Monday, 24 February 2014

Interim Care & Removal / Separation

The approach to be adopted by the courts is well summarised in the Court of Appeal judgment in Re GR (Children) & others [2010] EWCA Civ 871 and the lead judgment of Lady Justice Black:


33. It may nevertheless be of assistance to look briefly at the proper approach to the granting of interim care orders. It is trite law that the question must be approached in two stages. The first stage is encapsulated in s 38(2) Children Act 1989 and is sometimes referred to as the threshold for an interim care order. S 38(2) provides:

"(2) A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that circumstances with respect to the child are as mentioned in section 31(2)."

34. S 31(2) provides:

"(2) A court may only make a care order or supervision order if it is satisfied –

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to –

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child's being beyond parental control."

35. If the court is satisfied as required by s 38(2), it must then go on to consider, as a discrete issue, whether or not to grant an interim care order. This is a question with respect to the upbringing of the child, so, in accordance with s 1 Children Act 1989, the child's welfare is the court's paramount consideration. The delay principle (s 1(2)) applies, as does the no order principle in s 1(5). As the court is considering whether to make a Part IV order, it is also to have regard to the welfare checklist set out in s 1(3). There are existing authorities in relation to interim care orders which serve as a guide as to how to approach this second stage of the court's determination, the purpose of which is, of course, to establish a holding position pending a full hearing.

36. In Re H (a child)(interim care order) [2002] EWCA Civ 1932, Thorpe LJ said:

"38. … Above all it seems to me important to recognise the purpose and the bounds of an interim hearing. There can be no doubt that a full and profound trial of the local authority's concerns is absolutely essential. But the interim hearing could not be allowed to usurp or substitute for that trial. It had to be properly confined to control the immediate interim before the court could find room for the essential trial.

39. …..In my judgment, the arts 6 and 8 rights of the parents required the judge to abstain from premature determination of their case for the future beyond the final fixture, unless the welfare of the child demanded it. In effect, since removal from these lifelong parents to foster parents would be deeply traumatic for the child, and of course open to further upset should the parents' case ultimately succeed, that separation was only to be contemplated if B's safety demanded immediate separation."

37. In Re M (ICO: Removal) [2005] EWCA Civ 1594, Thorpe LJ referred, in the final paragraph of his judgment, to "the very high standards that must be established to justify the continuing removal of a child from home" as well as to the need to weigh in the balance the potential risk to the child of extended separation from their parents.

38. In Re K and H [2006] EWCA Civ 1898, Thorpe LJ said:

"16. Decisions in this court emphasised that at an interim stage the removal of children from their parents is not to be sanctioned unless the child's safety requires interim protection."

39. In Re L-A [2009] EWCA Civ 822, influenced by the decision of Ryder J in Re L (Care Proceedings: Removal of Child) [2008] 1 FLR 575 which he considered to have altered the law, the trial judge had not made an interim care order when it appears he might otherwise have been inclined to do so. The reference in Ryder J's judgment in Re L which had influenced him was to "an imminent risk of really serious harm i.e. whether the risk to ML's safety demands immediate separation". On appeal, it was common ground that Ryder J had not intended to alter the approach set out in the three Court of Appeal cases to which I have referred already. Thorpe LJ took the opportunity to restate the principles established by those authorities. From paragraphs 38 and 39 of Re H, he extracted two propositions:

"that the decision taken by the court on an interim care order application must necessarily be limited to issues that cannot await the fixture and must not extend to issues that are being prepared for determination at that fixture"

and

"that separation is only to be ordered if the child's safety demands immediate separation."

The important point from Re M was the very high standard which a local authority must meet in seeking to justify the continuing removal of a child from home. As to Re K and H, he identified the key paragraph as paragraph 16 providing that interim removal is "not to be sanctioned unless the child's safety requires interim protection."

40. There could be no doubt, therefore, following Re L-A, that it was to the traditional formulation in the Court of Appeal authorities that courts and practitioners should turn, not to Ryder J's phraseology.

41. The most recent case to which I would refer is Re B and KB [2009] EWCA 1254 in which the appeal was against the dismissal of the local authority's application for an interim care order. The trial judge had given himself what was described as an "immaculate self-direction" in these terms:

"whether the continued removal of KB from the care of her parents is proportionate to the risk of harm to which she will be exposed if she is allowed to return to her parents' care".

However, Wall LJ, with whom Thorpe LJ agreed, was persuaded that the judge had failed to go on properly to conduct the required balancing exercise. He said:

"56. Speaking for myself, I find L-A helpful. I agree with the judge that the section 38 criteria were plainly met in relation to both children, but it is equally clear to me that KB's welfare did demand her immediate removal from her parents' care and that there was abundant material (not least the views of the police) which warranted that course of action. In my judgment, KB's safety, using that word in a broad sense to include her psychological welfare, did require interim protection."

42. It may do no harm to invite particular attention to Wall LJ's definition of "safety" in this passage in Re B and KB. The concept of a child's safety, as referred to in the authorities which I have cited, is not confined to his or her physical safety and includes also his or her emotional safety or, as Wall LJ put it, psychological welfare. Indeed, it may be helpful to remember that the paramount consideration in the court's decision as to whether to grant an interim care order is the child's welfare, as section 1 Children Act 1989 requires, and as Wall LJ shows when he says that in his view "KB's welfare did demand her immediate removal from her parents' care".

Friday, 21 February 2014

Baroness Hale on diverse standards of parenting

Baroness Hale of Richmond in In re: B (Children) (Care Proceedings: Standard of Proof) (CAFCASS Intervening) [2008] UKHL 35, [2009] 1 A.C. 11:

“My Lords, taking a child away from her family is a momentous step, not only for her, but for her whole family, and for the local authority which does so. In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child from her family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality. Hence the family is given special protection in all the modern human rights instruments including the European Convention on Human Rights (Article 8), the International Covenant on Civil and Political Rights (Article 23) and throughout the United Nations Convention on the Rights of the Child. As McReynolds J famously said in Pierce v Society of Sisters (1925) 268 US 510, 535, “The child is not the mere creature of the State.”

Munby on diverse parenting standards

Munby J. in Re: K: Local Authority v N and others [2007] 1 FLR 399:

“[26] The task of the court considering threshold for the purposes of s 31 of the 1989 Act may be to evaluate parental performance by reference to the objective standard of the hypothetical 'reasonable' parent, but this does not mean that the court can simply ignore the underlying cultural, social or religious realities. On the contrary, the court must always be sensitive to the cultural, social and religious circumstances of the particular child and family. And the court should, I think, be slow to find that parents only recently or comparatively recently arrived from a foreign country – particularly a country where standards and expectations may be more or less different, sometimes very different indeed, from those with which are familiar – have fallen short of an acceptable standard of parenting if in truth they have done nothing wrong by the standards of their own community.”

Hedley J on diverse standards of parenting

I am frequently asked for this quote and where it comes from:

Hedley J. in Re: L (Care: Threshold Criteria) [2007] 1 F.L.R. 2050:

“[50] What about the court's approach, in the light of all that, to the issue of significant harm? In order to understand this concept and the range of harm that it's intended to encompass, it is right to begin with issues of policy. Basically it is the tradition of the UK, recognised in law, that children are best brought up within natural families. Lord Templeman, in Re KD (A Minor: Ward) (Termination of Access) [1988] 1 AC 806, [1988] 2 FLR 139, at 812 and 141 respectively, said this:

'The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature.'

There are those who may regard that last sentence as controversial but undoubtedly it represents the present state of the law in determining the starting point. It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.

[51] That is not, however, to say that the state has no role, as the 1989 Act fully demonstrates. Nevertheless, the 1989 Act, wide ranging though the court's and social services' powers may be, is to be operated in the context of the policy I have sought to describe. Its essence, in Part III of the 1989 Act, is the concept of working in partnership with families who have children in need. Only exceptionally should the state intervene with compulsive powers and then only when a court is satisfied that the significant harm criteria in s 31(2) is made out. Such an approach is clearly consistent with Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Article 8(1) declares a right of privacy of family life but it is not an unqualified right. Article 8(2) specifies circumstances in which the state may lawfully infringe that right. In my judgment, Art 8(2) and s 31(2) contemplate the exceptional rather than the commonplace. It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life. Significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it. Moreover, the court recognises, as Lord Nicholls of Birkenhead pointed out in Re H and others that the threshold may be comparatively low. However, it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy.”

Thursday, 20 February 2014

Evidence from non-English speaking witnesses: a reminder on procedure

NN v ZZ & Ors [2013] EWHC 2261 (Fam)

Mr Justice Peter Jackson sets out principles as to how evidence from non-English speakers should be obtained

In the course of a fact finding involving a number of witnesses that were non-English speakers, concerns were raised as to how their evidence had been obtained. Mr Justice Peter Jackson provided the following principles on how to obtain evidence in such circumstances:

"(1) An affidavit or statement by a non-English-speaking witness must be prepared in the witness's own language before being translated into English. This is implicit from Practice Direction 22A of the Family Procedure Rules 2010, paragraph 8.2.

(2) There must be clarity about the process by which a statement has been created. In all cases, the statement should contain an explanation of the process by which it has been taken: for example, face-to-face, over the telephone, by Skype or based on a document written in the witness's own language.

(3) If a solicitor has been instructed by the litigant, s/he should be fully involved in the process and should not subcontract it to the client.

(4) If presented with a statement in English from a witness who cannot read or speak English, the solicitor should question its provenance and not simply use the document as a proof of evidence.

(5) The witness should be spoken to wherever possible, using an interpreter, and a draft statement should be prepared in the native language for them to read and sign. If the solicitor is fluent in the foreign language then it is permissible for him/her to act in the role of the interpreter. However, this must be made clear either within the body of the statement or in a separate affidavit.

(6) A litigant in person should where possible use a certified interpreter when preparing a witness statement.

(7) If the witness cannot read or write in their own native language, the interpreter must carefully read the statement to the witness in his/her own language and set this out in the translator's jurat or affidavit, using the words provided by Annexes 1 or 2 to the Practice Direction.

(8) Once the statement has been completed and signed in the native language, it should be translated by a certified translator who should then either sign a jurat confirming the translation or provide a short affidavit confirming that s/he has faithfully translated the statement.

(9) If a witness is to give live evidence either in person or by video-link, a copy of the original statement in the witness's own language and the English translation should be provided to them well in advance of the hearing.

(10) If a statement has been obtained and prepared abroad in compliance with the relevant country's laws, a certified translation of that statement must be filed together with the original document."

Wednesday, 19 February 2014

Legal Aid: LASPOs, exceptional cases, questions in the house

And on the subject of LASPOs and exceptional cases

Tuesday, 11 February 2014.


Legal Aid

Question

2.36 pm

Asked by Lord Bach

To ask Her Majesty’s Government what assessment they have made of the extent to which Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, dealing with “exceptional cases”, is working as intended.

The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, the Government consider that the exceptional funding scheme is working effectively. We are monitoring its operation and will continue to do so.

Lord Bach (Lab): My Lords, I thank the Minister for his Answer as far as it goes. Parliament and the public were told time after time to believe that Section 10 would act as a safety net for those cases where it was manifestly unfair that the citizen should not have access to civil legal aid. However, the application forms are impossible for a non-lawyer to complete and a lawyer will not get paid a penny if the claim for legal aid is unsuccessful. Even worse is the fact that only in 3% of claims has legal aid ever been granted. The noble Lord was a member of the JCHR which, along with the Low Commission and many others, has recently criticised the working of this provision. Now that he is a distinguished member of Her Majesty’s Government, will he act to make this vital provision fit for purpose?

Lord Faulks: The provisions contained in Section 10 of the LASPO Act make it perfectly clear that it is there for exceptional cases where, in the absence of legal aid, there would be a violation of Article 6 of the European Convention on Human Rights or possibly of the provisions of the European Union. It is not about whether a case may be deserving; it has to fall specifically within the confines of the section. As to the application form, it was consulted on regularly and in detail before it became part of the process. I am surprised that solicitors are having difficulty in filling it in. It is possible for someone to fill in the form on their own and they can then have a preliminary view given to them by the Legal Aid Agency as to the prospects of success. It is true that the number of applications has been much lower than expected and it is also true that very few have been granted, but we are satisfied that the system is working in accordance with the section.

11 Feb 2014 : Column 530

Lord Thomas of Gresford (LD): My Lords, before the Bill was introduced, the Government said that they were expecting 5,000 to 7,000 applications a year. In fact, in the first year there were 893, of which only 23 were granted, which represents 1%. Is it not nonsense to suggest that this provision is a safety net for those who seek justice?

Lord Faulks: I can update the noble Lord by saying that in fact the total number of applications received is now 1,030, and the number granted is 31. I agree that it is a small percentage. It was difficult for the Government to predict exactly how many applications would be received. In fact, in some areas, including the area in which I practised, that of clinical negligence, there have been virtually none when it was expected that there would be very many. Trying to anticipate what might or might not be considered to be a violation of Article 6 has confounded many courts, not only in this country but also in Strasbourg.

Lord Woolf (CB): My Lords, perhaps what the Minister has just said indicates that I may have been right when I differed as a judge from my distinguished predecessor, Lord Bingham. He took a narrow view of the word “exceptional” while I took a very broad view of it. I regard it as a word which should be used to ensure justice in all cases where justice is required. Does the noble Lord agree with my approach?

Lord Faulks: The answer to the noble and learned Lord is that it depends very much on the context in which “exceptional” is used. The context in which it is used in this particular section is by specific reference to the European Convention on Human Rights.

Lord Beecham (Lab): My Lords, in answer to a recent Written Question from me, the Minister said that there had been 1,130 applications, of which 35 were granted, not the figures that he has given today. Be that as it may, what was the Government’s estimate of the number of successful applications and what did they anticipate would be the proportion of successful applications? Given that it has taken 14 months to reach a decision to grant legal aid in an important inquest case in which counsel appeared four times without any certainty of being paid, will the Government publish details of the times taken to determine applications?

Lord Faulks: In answer to the second part of the noble Lord’s question, the Government will be happy to publish the times taken. Indeed, I think that the noble Lord will be pleasantly surprised at how quickly these applications are being processed. In answer to the first part of his question, it was expected that some 3,700 would be funded each year. As I said in answer to an earlier question, it is somewhat mysterious as to why so few have qualified. Each case is considered separately by the Legal Aid Agency in accordance with guidelines given by the Lord Chancellor. All those doing this work are experienced and all of them follow the guidelines.

11 Feb 2014 : Column 531

Lord Pannick (CB): My Lords, the noble Lord said that Section 10 is working effectively. Will he give further consideration to the recommendation of the Low Commission, chaired by the noble Lord, Lord Low of Dalston, that the application process for Section 10 is much in need of simplification? Will the Government act on the concern expressed by the Joint Committee on Human Rights about the lack of training for Legal Aid Agency employees who are responsible for making decisions about Section 10?

Lord Faulks: The Government are aware of the JCHR’s concern about the lack of training. I have been reassured that the employees are appropriately trained and aware of their responsibilities. In terms of the forms, I give the same answer that I gave before, which is that the matter is kept under review. It is believed that the forms are perfectly within the capabilities of solicitors to understand. If one of these forms is inadequately filled in, you are told, whereas with some forms in other contexts you never know which box you failed to tick.

Lord Phillips of Sudbury (LD): My Lords, can the Minister say whether any research has been done into the number of cases of citizens who would wish to make applications but are unable to find anybody to help them in making those applications?

Lord Faulks: I think it is approximately 61. I will have to write to my noble friend with the precise number who actually made applications. Very often they are given a preliminary view, which they can then take to a solicitor, who will then be able, if he has been given some encouraging words, to take the matter forward.

Baroness McIntosh of Hudnall (Lab): My Lords, will the noble Lord reassure the House, in view of the very small number of applicants who have been successful, that the Government have no plans to withdraw the funding before people have figured out how to fill in the forms?

Lord Faulks: I can give that reassurance.

Tuesday, 18 February 2014

Legal Aid Update: What Is On the Horizon?

Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.



A Client and Cost Management System (CCMS) – civil online working

• Process begins w/c 21.10.13 with registration and training
• 20th January 2014 – rolls out for providers A-F (and all counsel)
• 31st March 2014 – rolls out for providers G – Z or a number
• 3 month transition period

CCMS enables:

• providers and their counsel to make legal aid applications and submit bills electronically
• allows them to scan and submit supporting documents electronically
• clients to pay the LAA in new ways, e.g. credit and debit cards, payment reference cards and via direct debit.

Benefits (according to the LAA!)

The system reduces duplication and errors and also means providers can benefit from:

• limited postage costs and a single document scanning centre to send us information
• more secure case and client information
• direct DWP link for providers to check their clients’ benefits status
• Seeing all payments on the certificate
• Knowing what is happening on the certificate
• Speedier processing of applications as they can be dealt by anyone at LAA anywhere in the country.

B Rate changes

All our fixed fees (not FAS) and hourly rates will reduce by 10% it is thought from next April (to be confirmed)

C Residence test

The Government has re-thought its proposed residence test whereby it had been proposed that all applicants for legal aid would have had to show the right to live in this country and that they had been here for 12 months
Following pressure and the responses, the Government has indicated that this rule will not apply to children less than a year old, or where the client is particularly vulnerable (not yet defined) or to cases concerning the protection of children. However, how it will affect private law cases is a concern for us all and we will need to look out for the final proposals and rules which are due to come in early 2014.

D Single Family Court

The LAA/MOJ are consulting the representative bodies on whether there should be any changes to the FAS fees when the new single court comes into existence in April 2013 on the basis that the division between courts will be less obvious. You will need to keep an eye out for changes in relation to FAS fees alongside the guidance for the single family court


Monday, 17 February 2014

Legal Aid Update: Forms & Getting Paid

Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.


Forms are found on this webpage

• Civil Certificate billing codes

• Rates calculator

Enables you to make sure you are using the right fee scheme and rates by reference to the certificate date and the proceedings

• Checklists for all applications for costs which you can use to make sure you are not making basic errors

LAA state the most common reasons for rejecting applications are - the form is incomplete and/or has not been signed or dated; mandatory documents have not been sent or the wrong form has been used

12. NEW REJECT EMAIL ADDRESS

If you believe a civil claim has been incorrectly rejected please use the new ‘civil claim reject fix’ email address:
laacivilclaimfix@legalaid.gsi.gov.uk

Use this email even if you believe they have made only one error and you have made loads. If you are right they will ignore your errors. This email address can only be used to ask about rejected claims – not for general enquiries.
The LAA will respond to enquiries about rejected claims within 24 hours.

13 New Complaints process


This web page sets out how to make a complaint. There is a first tier where you use the form as set out on the web page and email it - you should get a reply within 10 days.

If you are not happy, you can refer the complaint to the Central Customer Services team using the same form. You have to set out why you are dissatisfied and what remains to be answered. Again this is emailed in. You should hear within 10 days

14. Applications to extend Supervision orders are means and merits tested and not APP5. They are usually concluded at the first hearing so be ready to finish the case immediately.

15. Watch out: If a court makes an interim care/supervision order of its own motion within private law proceedings this does not entitle any party to Non Means and Non Merits tested legal as there has not been an application for a care order pursuant to s31 which is the passporting basis for such legal aid. Therefore it is still not going to enable a parent to get legal aid unless one of the ground set out above apply.

Of course, if LA then issue care proceedings you can apply on APP5 in the usual way.



Friday, 14 February 2014

Legal Aid Update: Miscellaneous Points

Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.


1 Watch out for the New KPIs and New Service standards in the contracts which started on 1st April 2013. These can be found in the Manual at sections 2C – 192-197

2 Scan in FAS form in case you lose it – LAA will not accept a copy but should be easier to get a copy from the court if a scanned in version available

3 Use standardised attendance notes with spaces for the actual figure of the claim to be inserted.

4 Keep running record of all advocacy (undertaken by both counsel and solicitor so you can tell at a glance who did which hearing) and disbursements. Use CLAIM1A for this purpose either as a hard copy or on the computer. Just keep it updated.

5 Scan in orders judgments and FAS forms. LAA now ask for the orders requiring early attendance so keep them with the FAS form.

6 Use as many standardised letters as possible including LOIs. There is already a list of good standard questions from the Family Justice Council and the Law Society so why reinvent the wheel.

7 Keep all experts details circulated on Yahoo Group on your own system.

8 Join Yahoo Group if not already a member.

9. Electronic Handbook

The electronic handbook is a supplemental resource designed for caseworkers which reflects current processes and guidance. This is found on this webpage

10 Narrative and guidance: legal aid


The 'Narrative and guidance: legal aid’ document contains an explanation of certain aspects of legal aid. Topics covered include:

• prior authorities (including authorities for counsel and experts in Children Act cases)

• funding for cases outside England and Wales

The Legal Aid Agency is producing a revised version of its ‘Paying for your Civil Legal Aid’ leaflet which legal aid providers should give to all clients applying for civil legal aid. You can obtain copies to print off at this webpage


Thursday, 13 February 2014

Legal Aid Update: Costs Assessment

Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.



Costs assessment guidance for use with 2013 Standard Contract can be found at this website

Also the LAA has set published a document setting out points of principle on costs issues which is very useful to see what is allowed and what is not


2 There are now fewer cases which go to court for assessment of bills as cases will only go to court if the assessable costs are over £2,500 – assessable costs do not include fixed fees; FAS; counsel; experts; disbursements.

3 So a case will only go to court for assessment if your profit costs exceed £2500 and this will only be in circumstances where the FAS/fixed fee scheme does not operate or you have escaped the fixed fee.

4 There is now a 100% enhancement cap in the High Court/Court of Appeal/Supreme Court for all cases started after 1st Feb 2012

5 There is also a 50% enhancement cap in other courts for all cases started after 1st Feb 2012



Wednesday, 12 February 2014

Legal Aid Update: Fraudulent Claims

Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.


1. See below for a copy of the notice sent out by LAA about expecting us to report any clients we suspect of making fraudulent claims.

2. LAA states that it now wants us to report any client we suspect is making a fraudulent claim for benefits and quotes a case where they refused to pay a firm £20K in costs because they had not done so.

3. It is unclear how this duty links in to our duty of confidentiality to clients and we have no information of how this rule is being applied or if it has been challenged

4. It is difficult to know how this is going to play out but we are absolutely certain that you will not wish to be a test case on this issue.

5. We would certainly advise that your standard letters to clients will need to be amended to reflect our duty to report them

LEGAL AID AGENCY Note referred to above

“Fraudulent claims: ensure your clients are eligible

Help safeguard the Legal Aid Fund and protect yourself at the same time

We need your help to help track down fraudulent legal aid claims.

We know that the vast majority of clients and providers make honest claims.

But there are times when providers need to be prepared for frank discussions with their clients to help us tackle the problem of fraud.

Joint fraud prosecutions

The Legal Aid Agency is doing an increasing amount of work with the Department for Work and Pensions on joint fraud prosecutions.
One particular issue concerns passporting benefits.
Although passporting automatically entitles the recipient to legal aid, a fraudulent benefit claim can also mean a fraudulent legal aid claim.
We know that you have a duty to act in your clients’ best interests. But you also have a duty under your legal aid contract.
So you must tell us if you suspect your client may not be eligible for a benefit.

Contractual breach

A contract breach was recently highlighted in a divorce case.

We found a provider had breached their contractual duty to report doubts over their client’s eligibility.

Following a joint investigation with the DWP:

• we declined to pay a £20,000 legal aid bill to the legal aid firm and
• the client was convicted for failing to declare several thousand pounds of earnings.

The firm’s mistake was to accept the client’s assurances that she had reported earnings of several thousand pounds a year as a self-employed masseuse.

The client’s mistake was her failure to declare her earnings to the Pension Credit Agency.




Tuesday, 11 February 2014

Legal Aid Update: Means Assessment

Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.


MEANS ASSESSMENT – WHERE WE ARE NOW

(this section is nicked, sorry reproduced, from Vicky Ling’s notes with her permission)

Following numerous reports from members concerning inappropriate means enquiries by the LAA, Carol Storer OBE wrote to Sean McNally, the LAA’s Director of Case Management.

Mr McNally’s prompt reply took members’ concerns seriously and acknowledged that some of the examples showed there were training needs. However, his view was that staff had made inappropriate enquiries in some; but not all, of our case examples. LAPG considers that in some important respects, the LAA is still interpreting the regulations incorrectly, and will be taking Counsel’s opinion in due course. This note provides information about areas where practitioners should no longer experience problems, issues to be aware of, and where further enquiries are likely.

Where the LAA should not be asking for more information

In the following examples, it was agreed that it was not appropriate to ask for more information and additional training/consistency checking measures have been put in place:

1. Where the client has a former partner. Where a relationship has come to an end, it is important to make this clear due to the LAA rules which allow them to take partners’ resources into account even if they do not live together.

2. Where clients are on an income passporting benefit, they should not be asked about their income or expenditure.

3. LAA staff should now understand that statements are only issued for Post Office accounts at three-monthly intervals and not ask for additional statements.

4. In possession cases, LAA staff should not be asking for information about the means of people living with the client if it is clear that they will be unable to contribute to legal costs, e.g. full time students, people who are unemployed and/or in receipt of means tested benefits. If such is the case, please give this information in the ‘extra information’ section of the CIV Means2 form.

5. In possession cases, LAA staff should not be asking for information about the means of people living with the client if it is clear that there is a conflict of interests, e.g. rent arrears have arisen because a non dependent has not contributed to the rent. If this is the case, it should be clearly explained on the application form.

6. If a client is being given a small fixed sum of money by a benefactor, that sum will be taken as income; but the benefactor’s means will not be taken into account – but see below regarding clients who are being ‘substantially maintained’ by a third party.

Issues to be aware of

1. If someone is street homeless and has a bank account, the LAA will still want evidence of the balance, even if the client is unable to supply three months bank statements.

2. If the DWP’s records show that a client is not in receipt of an income passporting benefit, and the application contains evidence that they are, the LAA should carry out a further check with the DWP.

3. The LAA will want evidence about the means of adults living in the property if it appears they could contribute to legal costs. If they are unable to contribute due to their own circumstances, the reason should be provided in the ‘extra information’ section of the CIV Means2 form.

4. If a member of the client’s family is supposed to contribute financially; but is not in fact doing so, do not include the figure in the client’s income. The LAA will only take money into account if it is paid.

5. Money paid by a family member in relation to household bills should be counted as the client’s income.

6. If a client’s partner/family provides support from abroad, but cannot produce evidence of their means due to forces outside their control such as UN sanctions, being in a warzone, foreign exchange regulations etc., full information should be provided so that the decision will be escalated to a senior member of staff.

Where further enquiries are likely

1. Where entries on a bank statement show movements to another bank account held by the client. The LAA will want statements from all accounts, held solely or jointly.

2. If a client is being substantially maintained by another person, e.g. where the third party is providing all the support an individual receives, even where this is on a subsistence basis, the LAA will generally use its powers under regulation 16(5) of the Civil Legal Aid (Financial Resources and Payment for Services Regulations 2013, to ask the benefactor to complete a Means1.
LAA staff should take into account the degree of affiliation with the person supporting the client and the closer the relationship, e.g. family member, the more likely it is that the LAA will ask for full information about the benefactor’s means. In our examples, where someone was providing board and lodging or where they were giving a client small amounts of money; but these appeared to be the client’s sole means of support, the LAA responded that it was generally appropriate to ask for a Means1.

3. If a client gives a figure for board and lodging, rather than rent, the LAA is likely to want to establish the element which is attributable to rent (which is an allowable expense) and food/utilities (which are not). This may include enquiries to the landlord.


Monday, 10 February 2014

Legal Aid Update: Exceptional Funding & LASPO

EXCEPTIONAL FUNDING

Under LASPO 2012, there is a new fund from which legal aid can be made available by way of exceptional funding.

This fund will consider applications for individuals who would otherwise not get legal aid and where failure to provide legal aid would be in breach of the individual’s convention rights, most likely to be under Articles 6 or 8. They still need to be eligible on means.

The Guidance you need to refer to is to be found on this Justice website page


It was made clear when this was introduced that successful applications were likely to be few. However practitioners did not predict such a low level of successful applications.

Solicitors are only paid for these applications if they are successful. Thus many solicitors are not prepared to take the risk in completing what is clearly a very detailed submission. The Public law Project is accepting referrals for completing applications from clients direct

What we have heard from the LAA is that

• There had been 357 applications for family cases but only 3 applications have been granted (as at the start of September). [There were 569 applications processed but only 11 granted across all categories]

• A significant proportion of applications were made where legal aid is in fact available and the applications had been referred to be considered to the merits and means team

• The quality of the applications was not very good to start with although had improved

• It is clear the application has to be very well drafted, not just making broad comments but emphasising with careful reference what aspects of the case require legal aid to be granted, referring particularly to complex facts and arguments

• The LAA is not going to grant EF just because the client would find it difficult to represent himself; or that the client has a level of difficulty that would make it even harder for the client to represent himself (e.g. a diagnosis of schizophrenia); or just because the client has a disability; or just because human rights issues are engaged

• The LAA will look to applicants to find people to support them in court so that would not be a reason to grant EF

• Successful applications will relate closely to the guidance and careful and focused completion of the application

• Applications must come to the London team. There is no emergency procedure but if it is urgent the team will try and deal quickly with the application

• Judicial comment that the case is particularly complex and setting out reasons for this might carry weight

Please do consider making applications where you feel a case has substantial merit

We consider that one area that should be pursued relates to the position for the parent, who has agreed to place her child with a family member, but then wants the child to be returned. There are no care proceedings and the family member is supported by the Local Authority to pursue a special guardianship order. Sometimes the Local Authority may even fund this family member. The natural parent finds themselves facing a care case in all but name, trying to fight for the care of their child and facing the prospect of a very significant decision being made about their child’s future without any of the safeguards a properly conducted care application would give them. The parent won’t get legal aid. This is a very serious consequence of the changes in April and it seems to us that a strong and well argued case for EF for a parent in this situation should be submitted.


Thursday, 6 February 2014

Legal Aid Update: Emergency Certificates


Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.


EMERGENCY CERTIFICATES

PROCEEDINGS CODES AND GUIDANCE (which you will need when exercising delegated functions)



You will find the following information and links to tables on this page

• Civil representation - guidance on proceeding codes and limitations
• Proceedings codes and standard wordings for post-April 2013 certificates
• Proceedings codes and standard wordings for pre-April 2013 certificates
• Standard limitation codes

1. We are usually expected to limit emergency certificates granted under delegated functions to a particular hearing.

2. If so you will not be able to attend any other hearing unless the certificate is amended either by delegated functions if the emergency certificate has not been dealt with or by APP8.

3. Also note that emergency certificates only last for 8 weeks so unless LAA has agreed to extend the duration of the emergency certificate you will not get paid for any work after the 8 week period.

4. LAA will look to check there are no gaps between the expiry of the emergency limitation and the start of the substantive certificate. In the rush of getting hearings covered and protecting our client’s position it is very easy to forget to protect our own position.

5. If the substantive certificate allows for attendance at any necessary hearing then you will be covered from the start of the emergency certificate even if there is a gap as this will repair that problem.

6. However, if a more restrictive scope limitation is imposed by the substantive certificate then that will be imposed on the emergency certificate.

7. Ultimately you must read each certificate to check exactly what it covers.

8 We are not covering means assessments in any detail but please note that from 1.4.13, there are no passporting benefits as to capital so even if a client is on a passporting income benefit (Income Support, income-based Jobseeker's Allowance, income-related Employment and Support Allowance, Guarantee Credit or Universal Credit (Pathfinder)), they still need to be assessed as to capital. This makes the use of delegated functions even more risky for solicitors.





Wednesday, 5 February 2014

Legal Aid Update: Private Law Proceedings

Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.


PRIVATE LAW PROCEEDINGS


1.1 Fixed fee for each area of law, so can get 3 fixed fees if acting in injunction, private law children and ancillary relief.

1.2 Different levels for payment in private law children – level 3 and 4 depending on stage of case. Escape is the 3 times the relevant fee – so if you have only got to level 3, escape is three times level 3 fee; but if you have reached level 4, the escape fee is 3 times the total of levels 3 and 4 for that particular area of work.

1.3 Have to go 3 times over to “beat” fixed fee and move to hourly rates. NO uplift applies in calculating whether fixed fee beaten. Note if you escape that advocacy remains in FAS – fixed payments.

1.4 Same exemptions as in FAS above

1.5 Do not forget you cannot include preparation for advocacy in this fee(save for a cancelled hearing- see above)

1.6 Have to time record on each category separately as have to claim separately for each area. You can “beat” fixed fee on one area but not on another.

1.7 Huge amount of admin needed for small claim.

1.8 Advise to separate out file to enable easy assessment (LAA will only need to assess the area of the file which has beaten fixed fee)

1.9 FAS scheme applies to all hearings but you can choose which category to claim within if more than one area dealt with at court

1.10 Same rules apply to moving from Family Help Higher to Legal Representation – ensure systems in place to make sure this is not missed.

1.11 Need to look more closely at costs limit bearing in mind you are entitled to fixed fee(s). Likely to need to apply to extend sooner than before.

1.12 Same penalty on transfer of legal aid. Each solicitor’s costs are assessed separately to determine whether beaten fixed fee.

1.13 Think carefully about POAs as can only claim 2 in any one year as before so cannot claim separately for each area of work covered by certificate

Tuesday, 4 February 2014

Legal Aid Update: Very High Cost Cases Part IV - Solicitor Advocacy events - & pros & cons

Solicitor advocacy events model

27 Many of the provisions as set out above apply here.

28 The main difference is that for hearings where the solicitor undertakes the advocacy, the solicitor can be paid a different rate. The rate is EITHER a fixed event fee (currently £1157) OR a lower event fee (£707) plus the FAS fee. Once you have chosen which of these you want, you have to stick with it for the hearings that you cover yourself.

29 For the other hearings that a barrister covers, you get a solicitor event fee. These solicitor event fees are slightly lower than the events fees for the junior counsel model.

30 The fees are different depending on whether the main hearing is more or less than 10 days.

31 There is only one rate for the solicitor advocacy event for the county and high court. However there are different solicitor event rates where counsel covers the hearing depending on whether the hearing is in the County or high court.

32. As a general rule you need to have done a significant number of hearings to make it worthwhile to use this model.

32 Under this model, chairing an experts’ meeting is still not remunerated as an event BUT the LAA have said they will keep this under review, and so they ask that you let them know if you have had to chair the experts’ meeting in your plan.

Pros and cons

33 Reasons for using an events plan

• The drafting of the plan is very much simpler and will save on costs drafts fees and can be done more quickly
• The plan can be submitted more easily and is usually agreed more quickly as it is simpler and the LAA will respond much more quickly (in July 2013, they said that 90% of events based plans were processed with 10 working days)
• You can get 100% payment on account of the events that have taken place so far
• The final bills are simpler (no need for breakdown of time) and paid more quickly.
• If you use the events based model, if you go over your pre-contract costs limit, the LAA usually allow this to happen but only if it was the move to events that put you over. If you exceed the costs limit on your normal time basis they will not allow any leeway.
• Responsiveness of the team managing events based contracts

34 Why not use an events plan?

• In a very complex case with lots of evidence and there is lots of preparation/consideration time.
• where you are likely to be able to claim a large enhancement,
• Where there are few hearings/advocates’ meetings and the number of events simply does not come close to matching the value of the work done on the case

Miscellaneous points

35 The LAA have said that if you have any cases awaiting payment and you would like to convert them to an events claim, you can ask for them to be pulled from the queue and as long as you are prepared to resubmit them with a new plan (a relatively easy task in terms of simply claiming the hearing and advocates’ meetings) then you can re-submit and you will be paid much more quickly.



Monday, 3 February 2014

Legal Aid Update: Very High Cost Cases Part III Events models - Junior Counsel Events Model

Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.


Events model

13 You now have the choice to enter an events model with the LAA in a public law care case when you have junior counsel cases or cases where you have done some (but not necessarily all) of the advocacy. There are two separate events models.

Junior counsel events based model

14 If you decide to enter an “events” based contract, the whole case will be paid on the basis of a payment for each event, whether the events pre-date or post-date the high cost case contract.

15 An event is a day of hearing or an advocates meeting (whether the solicitor attends or not). Under the counsel model, if the solicitor does the advocacy, he/she will only get paid the solicitor’s event rate and not any additional payment for undertaking the advocacy.

16 Chairing an experts’ meeting is not an event. Writing submissions is not an event but the Court may set aside a hearing day for written submissions and that day will attract an event fee. If the main hearing is over 10 days and hearing days are set aside for judicial reading, the reading days are treated as overrun days on the basis that nobody attends court. Only one event can take place each day.

17 The event payments cover all your costs in the case – preparation; drafting; letters and calls; attending court with counsel or without.

18 The case plan is much simpler, as all it does is sets out the events and you do not cost the work by hourly rates. Approval of the plans and subsequent payment is usually much quicker.

19 There are two different event fees for the event depending on whether the main hearing (including fact finding) is listed for over 10 days or not. Do not confuse this with the number of hearings in the case. If more interim hearings are listed, further events fees can be claimed. However, if the main hearing runs over or finishes early, there are also rules for rates for under and over runs on listed final hearings (i.e. if the 10 day hearing collapses, you get a lower rate for the dates on which the court did not sit).

20 Note that the LAA will not automatically impose a change of price for the event if the hearing goes over 10 days or under 10 days at the last substantive hearing in the case

21 The LAA will pay 100% of events which have taken place by way of payment on account

22 There are County Court and High Court rates. If the case goes to the High Court and stays there, the applicable rate will be the rate for the Court where the case finished. If you have a County Court case which goes to the High Court for an interim hearing/issue to be decided, that hearing can be costed on an hourly basis although we have had experience of them agreeing an event in such a situation.

23 You will need to work out if this plan is suitable for your case. Establish your total costs with uplift (N.B uplift can still be sought on a fully costed case plan) and divide by the number of events. There may be reasons why, even though you might be paid less under an events plan than under a fully costed plan, you will opt for the events case plan.

24 If the main hearing is under 10 days Counsel is paid by FAS (or the FGFS if the legal aid certificate pre-dates 9.5.11); if the main hearing is over 10 days, Counsel is paid by an event payment (NB guidance not clear if Counsel can still opt for FGFS/FAS for hearings over 10 days)

25 If there are further events fixed, once the plan has been submitted, the LAA need to be notified and the plan amended in the same way as the plan is amended in the traditional model.



Friday, 31 January 2014

Legal Aid Update: Very High Cost Cases Part II

Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.


General comments about high cost cases

7 Which Plan?

a. When you are reaching the £20K limit start preparing for a VHCC. You need to ensure your systems (whether sophisticated accounts systems or on the back of an envelope) allow you to add up your costs, counsel’s fees, experts and other disbursements

b. You might want to get your file costed to check your costs.

c. The LAA ask that as soon as you know you are going to exceed £25,000, you tell them. In practice, most of us wait to be sure we are going to exceed that sum. Do not leave it until it is too late.

d. Check your exiting costs limit will enable you to claim all your costs to date before registering as a VHCC as you will be limited to the certificate limit otherwise. You can add up the totals on your multiple certificates but you cannot have a total over £25,000 even if you have 6 certificates.

e. Check how many “events” there have been and multiply by the appropriate rate for each of the plans to work out your costs on an events basis.

f. Alternatively rely on your time recording and records of hearings on the case to be able to assess the costs to date

g. If you make more on an events basis then go with that. If you can make more on a timed basis then choose that but bear in mind how much more work is involved in preparing a detailed case plan and whether you will actually get round to doing it.

8 Ensure you know counsel’s fees and that they have been claimed.

9 If the case becomes high cost because a hearing overruns and they are being paid on the old FGF (which as time goes on is less likely), then as long as the fees on FGF at the time of the notification keep your total under £25,000 you are OK, even if when recalculated Counsel’s fees for those hearings are far higher once they have escaped FGF and their fees have been recalculated. This will happen less and less as FAS fees do not increase when a final hearing exceeds 10 days.

10 When you are at or near the £25,000 level, you MUST notify the LAA. You will see in the information pack where the notification must be sent depending on what type of case it is. You can notify by email (see above). The LAA will need details of the costs you have incurred so that they can be sure the case has been correctly notified by you. They will then tell you by email if the case has been registered and assuming it has, then you must then submit your case plan within 4 weeks.
NB this rule is going to be strictly applied. In the past the LAA did not seem to worry that case plans were not submitted and many of us would submit claim 1s in lieu. The LAA now say that unless they have agreed an extension or unless the final hearing is within 4 weeks of notification, you must submit your case plan within 4 weeks otherwise you will not be paid for the costs between notification and submission and they say that contract sanctions will apply. If you agree an extension make sure you do so in writing and keep to the new date.
If you have a hearing within 4 weeks, make reference to this in the email to the LAA and ensure they acknowledge this – you have 4 weeks from the conclusion of the final hearing to submit your claim in lieu Beware that if the final hearing does not in fact take place as a final hearing, the date from which the 4 weeks starts is the date of registration rather than the end of the listed final hearing.

NB if you are opting for an events plan, you still have to submit a case plan as well. It would be wise to send your papers to be costed into a plan before you notify.
In the event that you cannot submit a full plan (e.g as you await counsel or expert’s fees) either send in a plan to comply with the time limit or notify LAA of reason for delay and ask for more time. Note however that if the agreement is not forthcoming in time and you are near the 4 week deadline, you must submit your plan otherwise you risk losing costs between the notification and the date of lodging the plan.

If you are preparing a fully costed case plan, the LAA only promise to get back to you within 8 weeks so you are covered to carry on working as long as you have submitted within 4 weeks. The LAA hope to agree the case plan within 8-12 weeks. Once agreed, they will pay you your pre-contract costs. Please note the timescales for events plans are much quicker.

NB you MUST seek urgent amendment if you need a scope amendment or prior authority and these must be dealt with before the work is incurred in the usual way. It sounds obvious but make sure that you keep all your correspondence with the LAA on the subject of your case plans separate to your main correspondence

11 In the usual way you submit updated case plans when there are significant changes to the work you proposed or the next stage is reached.

12 With a fully costed case plan, you can obtain payment on account up to 75% of the pre-contract costs and 75% of any agreed stages of the plans once completed.





Thursday, 30 January 2014

Legal Aid Update: Very High Cost Cases Part I

Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.

Sources of information

Justice website page

High Cost Cases Family Information Pack (dated 1.4.13)

Events model packs – there are three

• single counsel - latest guidance is dated 1.5.13
• two counsel - latest guidance is dated 1.4.13
• solicitor advocates – just released – guidance dated - 7.10.13

CONTACTS AT THE LAA

For 2 counsel cases - highcostcivil@legalaid.gsi.gov.uk

For all events based plans VHCCEvents@legalservices.gsi.gov.uk

For normal high cost case plans vhcc.queries@legalaid.gsi.gov.uk

1 VHCCs are those cases where the costs exceed £25,000 excluding VAT but including all disbursements/counsel fees. For some time, solicitors were required to prepare a costed case plan for future costs on an hourly basis (save in cases where there were two counsel and solicitors which were usually paid by events)

2 The LAA makes no secret of the fact that they prefer events based plans for high cost cases and they think that there are many benefits for practitioners too. The LAA are keen to encourage solicitors to use the events based models.

3 The LAA have for some time now been offering solicitors the option of an events plan for public law care cases where there is a single counsel and the case is in the county court/high court. One of the disadvantages of this events model was that it was not very attractive to solicitor advocates who were conducting some, if not all, the advocacy in the case. Thus the LAA conducted a small pilot with some firms to test out a solicitor advocacy events model and this is now being offered to all solicitors.

4 Thus where you have a public law case with one counsel or where you have done some of the advocacy yourself you have the choice of either

a. one of the two events based models or

b. you can still opt for the original type of fully costed case plan.

5 The normal costed case plan remains the only route for private law and other public law cases (including rule 16 cases) although it may still be worth enquiring about an events model as we have experience of it being accepted on a discharge of care order case.

6 There is a comprehensive information pack on the LAA website and the model packs for each type of plan (see above). They are set out clearly and are relatively easy to read.