The value of justice

District Judge Nicholas Crichton takes exception to the recently announced £41m increase in the cost of the opening and closing ceremonies for the Olympics. It is difficult not to agree with him, however much you might be looking forward to next year’s festivities, especially when vital services such as the Family Drug and Alcohol Court (FDAC), which he leads, have a financial question mark hanging over their future.

Last night DJ Crichton, along with consultant child psychiatrist at FDAC, Dr Mike Shaw, and FDAC's service manager, Sophie Kershaw, gave LAG’s annual lecture. DJ Crichton sees FDAC as a 'problem-solving court' which gets results because of the strength of its interdisciplinary team. He does not tolerate delays and pointed out that the court is geared towards resolving issues over the custody of children quickly. Dr Mike Shaw stressed the importance of doing this as 'relatively short periods of time represent a big portion of a child’s life' and the need to establish attachment bonds between parents and children early in life.

Inspired by a trip to the US, where there are between 15-20 similar courts which try to tackle the problem of drug and alcohol addicted parents, DJ Crichton persuaded the government to establish the FDAC in January 2008. Parents are offered intensive treatment and support to assess if they can have continuing contact with, or custody of, their children. It is not a soft option. They are expected to attend court every two weeks to report on progress and are subject to regular drugs tests.

DJ Crichton spoke of the pride of some parents when they appear before him to report their success in staying off drugs. Some are not successful. At the lecture, he told the heartrending story of a mother who had received two months of treatment from FDAC, but realised that her rehabilitation would take two years. This was too long for the FDAC process, which expects to resolve issues over the care of children after nine months, and the mother agreed to give up her baby for adoption.

Research has shown that the FDAC approach works (see below) - it manages to reunite more mothers with their children; more parents get treatment to deal with their addictions; and more parents stay together after the court’s final order. 'Parents who have learnt on the way [through the FDAC support] are less likely to contest a care plan' and this also saves costs says Sophie Kershaw. She argued that the cost of a case at around £12,000-13,000 is not expensive, but all of this amount will have to be met by local authorities if the government does not renew its grants to FDAC. She fears that cashed strapped local councils might not be prepared to do this.*

Despite the success of FDAC (the service has won four major awards - see below), no renewal of grants has been agreed by the government when the current funding ends in March 2012. This prompted DJ Crichton’s remark to LAG about the increase in the cost of the Olympic ceremonies which he thinks cannot be justified given the austere times the country is facing.

LAG believes the doubt over FDAC’s continued existence is a symptom of the government’s obsession with budget cuts without regard to their wider impact. Helping parents resolve addiction problems while protecting children saves other costs to the government. Above all the work of FDAC should be valued as providing a beacon of hope for tackling social problems that no-one in the family justice system believes the law and the current courts system can adequately deal with.

*This is a change from the original blog as Sophie Kershaw contacted LAG to clarify her comment about local council support.

Visit: http://www.lag.org.uk/Templates/Internal.asp?NodeID=93969 to read the evaluation report on the work of FDAC and find out about the awards the FDAC team has received.

An abridged version of the speech will appear in the February 2012 edition of Legal Action journal.

Picture: Robert Aberman

LSC: no appeal on family contracts

The Legal Services Commission (LSC) has confirmed yesterday that it will not be appealing against the judgment made on the Law Society’s judicial review of the family law tender process. The LSC had 14 days from 14 October 2010, when the transcript of the judicial review was published, to decide whether or not to pursue an appeal.

The LSC had extended the current family contracts until 14 December, pending a decision on whether or not to appeal the High Court’s judgment. The judgment quashed the result of the tender round for family and family with housing matters, after finding that the process was illegal (see 1st Oct blog Civil Contracts-what now?). LAG understands that the LSC is now in negotiations with practitioner groups to thrash out a way forward in managing the family legal aid contracts. It says that it is keen to encourage dialogue with the practitioner groups in order to minimise disruption of services to clients. It is likely that it will be forced to extend the current contracts and has the option of doing this until April 2012. The LSC also wants to push through already planned changes in family fees to ensure that the same fees are paid to both barristers and solicitors.

LAG welcomes the LSC’s decision not to appeal against the judgment in the Law Society’s judicial review. An appeal would have led to fresh uncertainty. We believe the LSC is not ruling out a further bid round in family to allocate matter starts. Much still remains unresolved. The way is now open for firms which were successful in the bid round to bring claims for damages. The most pressing problem is that the government is going to consult on planned changes to scope, which is likely to include areas of family law such as divorce and ancillary relief, in the next few weeks. It would seem pointless to run a tender round for contracts which might not be viable in a year or two when these expected changes are introduced.

Non-family legal aid contracts and family mediation contracts will start on 15 November. These contracts had been delayed for a month due to the Law Society’s judicial review. The LSC had initially argued in the judicial review that the non-family contracts were interlinked with the family contracts, but had not pursued this line of argument further at the full hearing. LAG understands that at least four judicial review hearings relating to these contracts are pending, but we believe these could be settled before hearing in circumstances similar to the successful challenge brought by the Community Law Partnership, which withdrew its case after the LSC reversed its decision not to offer it a contract.

Law Society takes action on family contracts

The Law Society has today (20 August) announced that it has commenced judicial review proceedings against the Legal Services Commission (LSC) over its handling of the tender process for the family law contracts.

Both practitioners and the LSC were surprised by the outcome of the tender process which was announced last mouth. 1,100 firms failed to secure new contracts, leaving only 1,300 to cover the country. In contrast, in the criminal law bid round involving a similar number of firms, all except a small minority were successful in their applications for contracts which commenced last month.

LAG understands that the Law Society has been under pressure from firms which successfully bid for contracts not to challenge the tender process, but Law Society president Linda Lee argues that it has a public duty to act as it fears 'access to justice is in peril' due to the reduction in the number of firms. Lee, who took up her post only last month, said: 'In some areas of the country, vulnerable clients will now be forced to travel long distances to find a solicitor and in some areas, there will be too few firms to represent clients, causing conflicts of interest where several parties to a dispute need and are entitled to independent representation.'

LAG believes that the Law Society is right to put access to justice for the public above the interests of the large number of its members who have gained from the tender process. The essential fact remains that an overnight reduction in the number of outlets providing family legal aid services risks members of the public not being able to find a lawyer when they need one. We are particularly concerned about the availability of legal aid in domestic violence and child protection cases.

However, it is only once the results of the appeals are known (lodged by many unsuccessful bidders) that the true pattern of provision will be revealed. LAG also suggests that firms which have overbid could negotiate reduced contracts with the LSC. This move would allow more firms back into the system. We would argue that a delay in the commencement of the contracts would give more time for all concerned to gain a better understanding of the availability of legal aid locally. We are suggesting that the government and the LSC need to agree with practitioners (both winners and losers in the contract process) on a three-month hiatus for this to happen.

Image: Legal Action Group

Family fees announced

The Legal Services Commission (LSC) has today announced the fees for family cases. These had been subject to intense negotiations with representatives from legal aid providers. If publication of the fees had been delayed the whole bid round process for civil legal aid might have been put in jeopardy. But the fees could still be subject to a legal challenge.

Family cases take up over half of all expenditure on civil legal aid. It would have been difficult for firms to bid for contracts in the other areas of civil law without knowing the fees for family work. Hourly rates for advocacy will be abolished under the scheme and a system of standard fees will be introduced.

Barristers stand to lose out on the fees as while the government claims that the overall budget for family cases will stay the same the amounts paid to barristers will go down. The intention, the government says, is to pay the same to solicitors and barristers for the work. LAG understands that there is much disagreement over the data on which the new fees are based and that the Bar had wanted further time for analysis of this.

Fees for private law family work (mainly divorce and custody matters) have been subject to bitter wrangling behind the scenes and some practitioners are questioning the viability of the proposed fees. The government will wait with bated breath to see if the Bar will move to bring a judicial review to challenge the scheme and risk derailing the civil contract bid rounds.