Martin Sewell: The legal aid crisis

Martin Sewell, a Family Lawyer specialising in Child Protection, laments the chaos caused by the Government's mismanagement and underfunding of legal aid.

A convicted drugs dealer recently evaded the possibility of his frozen financial assets being confiscated, because no legal aid barrister could be found to represent him at the hearing. The simple reason for this is the arrogance of a Government that will not listen to the serious concerns about reforms when expressed by practitioners in any professional field, be they dentists, teachers or, in this case legal aid practitioners.

It is always asserted by New Labour that any professional opposition to Government reforms is based upon unreasonable obstruction by interested parties, but the facts of the case were surely so plain that anyone with half an open mind could see such a problem looming.

As a result of changes by which legal aid lawyers are paid, a barrister undertaking the case in question would have had to study and retain the significance of 6586 documents and to prepare a detailed cross referenced schedule of 4548 transactions. Taking into account the number of hours not infrequently needed to master a substantial set of papers this can work out at as little as £6.50 per hour, given that the preparation time cannot be charged in addition, but is expressed only in terms of a fixed daily fee.

The assets in question were worth in the region of £5m. The case was complex and serious and the barrister would have been required to have substantial experience in the specialism of asset recovery. Over thirty counsel from chambers all over the north of England were approached and nobody would accept the solicitor's instructions on behalf of the defendant.

Barristers operate under the "cab rank rule" by which they must accept a brief properly offered if they are available, but they are entitled to decline if the brief fee offered is inadequate to the scale of the work in hand. Few could argue that the scheme as designed by our new Ministry of Justice would attract anyone of experience and competence to do such work, and so the Judge was forced to reject the application over the assets.

The defendant’s right to a fair trial was compromised by the inability of the defendant to receive the necessary professional help to advance his case.

Judge David Mole, QC, sitting at Harrow Crown Court, observed that the new system... "does not provide sufficient funding to pay for the necessary representation". The defendant could not fund his own representation as, it was the law itself that prevented him from using his own assets to personally pay for lawyers.

It was a spectacular own goal for the Government’s Human Rights Act. This is not an isolated incident. From all quarters of the legal sector, the sky is black with chickens coming home to roost.

In the area of Child Protection, lawyers are similarly required to undertake complex and important work for an inadequate fixed fee which they can only rarely escape. As a result many experienced lawyers have left the scheme to undertake different work or to retire. This was predicted but warnings were again ignored by Government.

The obvious consequences were simply denied by Government during a charade of a "consultation". They preferred the reforming views of Lord Carter whose absence of any experience in law was preferred because of his past history in charge of Sport England (that well known example of a British success story).

When warned of the exodus of experienced solicitors, the then Solicitor General would not listen, even though the firm of her own sister, the ordinarily vocal campaigning solicitor, Sarah Harman quietly left the scheme because it was uneconomic.

It was not simply the money that drove dedicated professionals away.

At the same time, a small but important change was enacted in September 2007 whereby the costs of assessing parents engaged in Care Proceedings in Residential Assessment Centres, an important weapon in the armoury of any Child Care Lawyer seeking to sustain children within the family, was shifted. Whereas once the costs were shared between the Local Authority and the Legal Aid Commission, thereafter the entire cost was to be born by the Local Authority. They do not have the funds and so it no longer happens.

The Residential Assessment was a safe environment where an intensive investigation of parental ability could take place. Such places were expensive, and yet as an alternative to taking children permanently from their families it was an important option to be offered for the approval of the Judge.

Care Proceedings have always been a rough trade. Care Lawyers often have to tell parents that their children are to be removed and adopted and they will never see them again. Many of those parents were let down as children themselves when they had previously been through the care system. How they ever cope with the standard "Goodbye visit" few of us ever want to begin to imagine.

Those of us who undertook such work with its difficult decisions, were able to do it when it was the culmination of a fair and meticulous process leading to a clear decision that no other outcome was right for the child.

Now, however, we are faced with undertaking the work knowing that there were things that previously might have been tried, that can no longer be attempted. Some of us have decided that it has become a crooked game in which the odds are so loaded against the parent that children will be administered into Adoption without a fair process. Few who have an alternative want to remain part of such a system.

All is not well on the other side, in the Local Authority camp. In April 2008 the costs of initiating Child Protection cases increased by a staggering 3000%. Whereas a £175 fee would previously have been paid, the initial fee is now £2225, with additional fees as the case progresses so that a fully contested hearing now will cost the Council Tax-payer over £5k.

The Crown Prosecution Service does not have to make a massive payment for the use of the Courts when they initiate criminal proceedings for a minor criminal offence. Heather Mills had to pay just £175 to access the Courts and emerge with £24m.

Mohammed Al Fayed could tie up months of Court time without contributing to the costs of the Judge and the Court building.

Only the protection of children attracts such a significant fee, some Child Care lawyers wonder why. This has been justified by Government Minister Brigid Prentice as simply a matter of internal Government revenue accounting.  It is said that Local Government was given the money in advance within the last financial settelment round. However, Local Authorities were not warned of this in advance, and so made no provision for this, any more than they were able to do so to cover the costs of Residential Assessments when it was shifted onto the local Council Taxpayer.

Worse still, only now have they been advised that the changes apply not only to newly filed proceedings, but to cases already running and so the cost is greater than they thought when first told some months ago. Because Local Council was not told in advance that such a change was contained in the last settlement, the funds were not ring fenced and had often already been allocated elsewhere before the change in Court fees was announced.

From my own enquiries, the County of Kent is likely to be disbursing something in the region of an additional £1m in Court fees in the next year simply on child protection cases. This is in addition to the costs of being required to undertake assessments in advance of proceedings under a new protocol - for which they are equally unfunded.

As a result of these changes, already the number of Care cases in London started since September 2007 has reduced by up to 30%. The figures for other pilot areas studied have not been released. Certain Local Authorities have not issued any protective proceedings since the new charging regime began. It is a very worrying risk.

There are some almost farcical consequences.

In Cumbria the court requires Local Authorities to pay the fees for an application for a care or supervision order in advance, at the time of making the application. The Legal Services of the Local Authority are unable to draw sufficient funds from petty cash to meet the new fees and hence have to order a cheque which takes over two weeks. In the meantime the court office is asking the employed Local Authority solicitors to personally guarantee that the fees will be paid. Apparently there is no system as yet for the court to invoice the Local Authority

Elsewhere, Councils, instead of undertaking the required assessment of young vulnerable mothers in advance of the birth of their babies, are reportedly encouraging young mothers to move to live with relatives in other boroughs as a way of avoiding Care Proceedings and thus shifting the problem over the borders to other Local Authorities in a manner reminiscent of the buck shifting under the old Poor Laws.

It is no laughing matter. For some time, The University of Cardiff has been studying the admissions to Hospital Accident and Emergency Clinics to gather useful information about Non Accidental injuries to Children. Already they are recording a significant rise in the number of children being admitted to such units for non accidental injury.

This was what Child Protection lawyers predicted and we are convinced that the core of the system which grew out of, and was refined, as a result of over thirty public enquiries, from Maria Colwell to Victoria Climbie, is being systematically degraded by an arrogant administration that does not value experience and will not listed to those with practical experience in the field.

There never was a lack of willingness of professionals to discuss and improve. The Legal Aid System has been poorly funded for years (with no pay increases for practitioners for over twelve years). No young lawyer would be advised to join it if they could work elsewhere.

A major reason was the cause that dare not speak its name. Whilst the costs associated with Child Protection and Family Law were not only being contained but reducing, the budget for Immigration and Asylum work exploded in the same period when the Government lost control of the country’s borders. That is not anecdotal prejudice but a simple accountancy fact.

A system that was designed for the protection of children and the safeguarding of family life is currently steadily being degraded as Government looks to cut corners, and ignore the advice of Judges and practitioners alike. The cost of that policy is being paid by children, the weak, the poor the vulnerable and the learning disabled who make up the vast majority of persons caught up in the system.

If you can explain why we are taking such a harsh line with children and their families please do so. It is beyond those of us whose only disqualification in Government eyes is knowing something about how these things operate in practice.