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ALC Co-Chair, Alan Bean’s, comment piece in Family Law March 2011

ALC Co-Chair Alan Bean’s comment piece, in the March edition of Family Law:

THE GREEN PAPER ON THE REFORM OF LEGAL AID, AND THE FAMILY JUSTICE REVIEW

Time for responses to the government’s Green Paper Proposals for the Reform of Legal Aid in England and Wales (CP12/10) closed on 14th February 2011. Vast amounts of time and energy have been poured by representative bodies, children’s organisations and academics into pointing out flawed thinking behind the proposals, which display manifest ignorance about law, practice and procedure in family cases , and the dire consequences of carrying through these proposals on the poorest and most vulnerable groups in society, especially women and children.
This is nothing new. Those same organisations and people have had to grapple with wave upon wave of ill-considered proposals for many years. Time after time we have discovered that, while it might seem like a good idea to get some feedback from practitioners before embarking upon a major consultation exercise, this is a wholly alien concept to the civil servants and non-departmental public bodies which control policy and funding in family law. This Green Paper, however, adds a brand new dimension of folly. It pays lip service to the principle that major policy decisions ought to be evidenced-based, but the Paper seriously misrepresents such research as it does refer to, while contriving to suggest that further research is being carried out when this is not, in fact, the case.

Here are three examples:

(1) paragraph 4.209 : quoting the Omnibus Survey Report No. 38 : Non-resident parental contact, 2007/8: A report on research using the National Statistics Omnibus Survey, produced on behalf of the Ministry of Justice and the Department for Children, Schools and Families (Lader, D)(2008)(Office for National Statistics: - “The vast majority of children had the contact arrangements with their non-resident parent arranged informally without the assistance of the Courts, lawyers or mediators” That is not what the research states. What it says is that a large majority (74%) of persons who had been able to reach agreement without a court order did so with the advice and assistance of lawyer, judges, CAFCASS officers and other members of the existing family justice community.

(2) paragraph 4.268 : summarising R Moorhead and M Sefton Litigants in Person: Unrepresented Litigants in First Instance Proceedings (2005, DCA, pp 223, 224): “Research conducted …in 2005 did not find a significant difference between cases conducted by a litigant-in-person and those in which clients were represented by lawyers, in terms of court time.”
That is not what the research states. What it says is that there was a “marked difference” in ancillary relief applications, and in “Children Act cases” differences which are “statistically significant”, whilst in injunctions “the differences were starker.”

(3) (paragraph 4.269 : “We [i.e. the Ministry of Justice] are undertaking further research into this area” (that is, litigants in person) Well, they’re not! They sent an email out on 14th January 2011 to “experts, stakeholders and research funders” asking for help in identifying any research which had been published, i.e. they are carrying out a review of the literature. Why was that not done before publishing the Green Paper?

At a meeting of leading academics, children’s organisations and family law representative bodies in London at the end of January 2011 (which generated the letter to The Times published in this edition of Family Law) the comment was made that if the Green Paper had been submitted by a first year student it would have been unceremoniously flung back. How satisfying it would be to do just that. Unfortunately, the civil servants who wrote the Green Paper cannot be marked down or made to rewrite it. Most of them have moved on to other jobs. The responses to the consultation are being considered by people who did not even have the advantage of preparing the original document.

Respondents to the Green Paper are constantly being told they need to come up with positive proposals. This is exactly what we have done. Suggested amendments range from detailed proposals to make the administration of legal aid cheaper and more efficient, for example: better use of technology (electronic court bundles, and telephone hearings for simpler case management hearings) through to broader family law and procedure changes such as introduction of a family court staffed by specialist judges who see cases through from start to finish, no-fault divorce, an end to the role of adoption panels in cases where the court is asked to consider placement for adoption in the context care proceedings, a better procedure for early case management in private law cases with a fast-track option (whether court based or otherwise) for simple cases. Proposals even include such blue sky ideas as providing for a much greater proportion of, or indeed all client account interest to go to the Legal Aid Fund (why stop at the modest proposals in Part 9?).

The government will respond early in April 2011. Their response will coincide with the interim report of the Family Justice Review. Can we hope that the Review, at least, will base its recommendations on evidence, and a detailed understanding of the impact of the reforms it proposes? It is, after all conducting an in-depth and year-long review, the most significant there has been during the life of the Children Act 1989. The Review will not be publishing its final report until September 2011 at the earliest.

Yet it seems likely that the ground will be cut from under their feet, if the government’s response to the Green Paper consultation is published before lawyers, the judiciary and other interested bodies have a chance to respond to the Review’s interim report and suggestions. The minister responsible and the civil servants have been challenged on this point. Mr Djanogly’s response on 24th November 2010 was that the Review and the MoJ were in constant dialogue with each other, and that the Review team would know what the government was proposing and vice-versa. Or as a civil servant elegantly put it at a meeting with representative bodies on 27th January 2011: “The Review is dealing with the landscape of family law as it is, and that landscape includes what the government decides to do in response to this consultation”.

Let us hope that the members of the Review Panel don’t find themselves in the same position as a group of architects and conservationists whose meeting, to decide what to do with a Grade 1 listed building, takes place on the morning after the bulldozers have flattened it.