Practice area focus: children law

In an unusual move last month, Munby J lifted a restriction order preventing the press from reporting the proceedings involving a Norfolk couple trying to stop their fourth child being taken into care. The couple's previous children have all been taken into care after allegations of abuse. But the parents claimed that they had been victims of miscarriages of justice and that the system should be exposed through media coverage. The judge agreed to their request on 11 November (Norfolk County Council v Webster [2006] EWHC 2773).

More openness?

Jenny Boswell, a barrister practising from Tooks Chambers applauded the decision for 'grappling with live issues that have been mumbling along but had not, until then been addressed properly because of the inherent conservatism of the family court system'.

But that is not to say that Boswell wholeheartedly supports the principle of openness of family courts. 'It's a fundamental principle that justice has to be seen to be done and, historically, in family courts it's been extremely difficult to properly challenge decisions about publicity and publicity injunctions.' According to Boswell, the number of celebrity cases in the past ten years and the action by pressure groups such as Fathers 4 Justice have drawn attention to very real issues, but children, in particular older teenagers, say they have not been helped by the family courts. 'There is a risk of sensationalisation,' says Boswell. 'The court shouldn't be an open house whose debates are open for discussion; it detracts from the decision the court has to make.' She also fears that reporting would be selective, giving 'just bits of judgment, not the full picture' and that 'from a young child's point of view, it's just not a good thing to have your life discussed publicly'.

Sally Dowding, a solicitor at Elwyn Jones & Co in Bangor, is equally circumspect about the opening up of family courts. The Webster case, she says, is 'very specific', and her main concern is that whatever is decided should be decided in the interest of the children involved, which is even more important for younger children. In each case, decisions should be taken with regard to the specific circumstances of the case, and anonymised judgments are not necessarily a one-size-fits-all solution. 'In a big city, it is more difficult to work out who the judgment relates to, but in rural areas, it is much easier; people can put together the details of the case and make out who is involved. So it's not in the child's best interests if a judgment is open to all.'

Dowding only finds relative comfort in the fact that the media will only be interested in a case if it sells papers, saying it could leave those children involved in controversial cases very exposed. 'Children can be torn apart in the playground, and judges don't always realise this.' As to access to the law and the dissemination of legal knowledge, which is one of the arguments of the supporters of openness, law reports specialising in family law have made the information available to lawyers for some time. Circulation of legal information would improve little, if at all, if family courts were to be more open.

Legal aid reforms

It is the current proposals for the reform of legal aid, however, that top the list of concerns for children lawyers. 'It's a huge concern,' continues Dowding, 'and there was some relief last month when the Lord Chancellor said the figures would be looked at again.' But Lord Falconer was clear last week that there would be no more money for legal aid. This, according to Dowding, would threaten 'the ability of solicitors to represent vulnerable children'.

Like the rest of the profession, Dowding was taken by surprise when Lord Carter's brief to make proposals for the reform of criminal legal aid was extended to civil legal aid at the last minute. 'The number of legal aid contracts for family work has dropped from around 4,800 in 2000 to 2,700 in 2006, so there is great anxiety to ensure that there are no further cutbacks, as this would lead to even fewer contracts.'

So how do practitioners make a living on the current rates? In Dowding's case, the solution is a mixed partnership. But essentially one has to be 'very committed to publicly funded work'. Almost inevitably, children public law work is 'subsidised by other areas of work', but mostly, it's about putting in long hours. 'An ordinary 35-40 hour week would just not be sufficient to pay staff,' says Dowding.

Ten-hour days are also the norm for Vanessa Priddis, head of family at South-east firm Foot Anstey. But she also blames the bureaucracy generated by the legal aid system for the long hours, the forms to fill in and the paperwork.

Then there is the reward for success. Care cases, according to Boswell, are particularly sensitive and require extensive preparation, extreme commitment and skills. 'In particular in the more difficult cases, you have to 'go the extra mile', be fearless, and take time to enable the parents or children to feel comfortable and prepared and not feel undermined or humiliated by the system.' So for those who excel, the perpetuating conundrum is that they will get more and more instructions in the more difficult cases. Less controversial cases will be handled by chambers where there are no big names, and the picture on their side of the coin is much tougher. 'The distinction cuts across both solicitors and barristers.' says Boswell. 'What really matters is to be an experienced advocate, whether you are a barrister or a solicitor; rights of audience are not really relevant other than in the Court of Appeal. It is much more about a division of labour.'

Ageing talent

Boswell's comments on experience are echoed in the report prepared for the Association of Lawyers for Children (ALC) on the likely impact of the legal aid reforms for family practitioners. The report by Dr Julia Brophy of the Centre for Family Law and Policy at Oxford University, surveyed ALC members, all of whom are on the Law Society's Children's panel, and focused on public law work (92 per cent of respondents).

'Most respondent were female (70 per cent) and 58 per cent are over 45,' says Brophy, '74 per cent are partners and 42 per cent have over 21 years' PQE; only 15 members of the panel are under 30, which indicates that we are facing a skills decline, with a very experienced, mature population and few new entrants in this branch of the profession.' (See table for full breakdown of the likely impact of legal aid reform.)

This current situation is likely to be exacerbated by the legal aid reform, according to Brophy. 'We are already struggling to get younger people into family work, let alone public work on to the children panel, so when these figures are combined with the current difficulties in getting a child care lawyer in certain parts of the country, you do worry about the impact of the reforms. If fixed fees are to work, they must reflect the time and effort spent.'

Slow system

Underlying many frustrations is the creakiness of the system itself. The 40-week target for hearing cases is only met half of the time, as cases tend to overrun by anything from a few weeks to a few months. There can be many reasons that are not within the lawyer's control. 'Individual circumstances change, another child is born, all this delays the resolution of the care proceedings,' says Dowding.

Priddis shares these concerns. 'At the moment, we experience delays as a result of the lack of experts. Few are prepared to undertake work in this area, and after Meadow, fewer come into this field. Cases with older children take four to six months and there has been noticeable deterioration.'

Getting a hearing date to start with is a regular headache. 'The 40-week target rarely works,' says Priddis, whose hearings are currently listed for July 2007. Once a hearing date is set, the next question is the length of proceedings. 'People ask how long it will take, but it's difficult to say; a case which is likely to be contested will take more than a day so most lawyers say it will take a week. The courts try, but in cases where there are contact issues, residential assessment, or assessment of the 'harm' threshold in care proceedings, time is out of their hands.' CAFCASS's involvement can also slow down the process, as it takes time for officers to produce reports. Priddis says that they are making greater efforts to speed up the process, in particular by going to mediation, but this has yet to have an impact on the system.

Improving the system

Things could be a lot better, according to Dowding, if local authorities were better resourced, so that there were fewer cases reaching the courts in the first place. She reckons that CAFCASS and local authorities work extremely hard but have too few resources. 'There aren't enough social workers and not enough representative work,' she says. 'CAFCASS is under-resourced and their budget is too small. There is a need for more guardians and more people on the ground.'

Boswell also feels that proper channels of communication and consultation with CAFCASS would help. 'At the moment there is only a complaints procedure when things have gone wrong,' she says.

'More judges please'

'More judges' is another frequent plea. Priddis, for instance, says that an increase in the number of judges would ensure that cases could be dealt with more quickly. Boswell even believes that Britain could be taken to Strasbourg over the shortage of judges, for breach of human rights principles. 'There are funding issues in taking a case to the European Court of Human Rights', which is why it has not yet happened, but mostly, Boswell says 'there is a misplaced hope that if you try and contain the system, people will adapt to reduced circumstances'.

Looking at the other end of the process, Dowding would welcome more facilities for children, such as a greater number of mother and baby residential units. There is also a lack of support services for children with mental health problems. Priddis identifies support as a key area for improvement: 'There ought to be a better support package and a better service in respect of mother and baby placement, foster placement, and allowing children to remain with their family while a case is pending. A good support network is often all that is needed.'

Children lawyers have been in turmoil for some time and their fate is unlikely to be improved by the current legal aid proposals. Their situation is compounded by a recruitment crisis, tensions within the system, and lack of resources in the non-legal parts of the process. The problem, however, runs deeper. Family law is only one area where funds are being curtailed, as many other sectors, from housing to immigration, are suffering from the slow dismantling of the welfare state.