It is the biggest growth area in legal aid, but with a raft of problems facing childcare practitioners, Grania Langdon-Down asks is family justice on the verge of collapse?




Representing children and parents in public law care proceedings can be the ‘stuff of living nightmares – I wouldn’t wish my knowledge on my worst enemy,’ says Christina Blacklaws, who has specialised in this work for nearly 20 years.



But there are also tremendous rewards in knowing that, ‘by and large, you have helped children who were in a terrible position have the chance of a better future’, says Ms Blacklaws, chairwoman of the Law Society’s family law committee.



However, as a practice area, it has been in a state of trauma since the Legal Services Commission’s (LSC) proposals last summer to replace hourly fees with a fixed-fee scheme. Given the often-harrowing nature of the work and its vital importance, childcare practitioners felt betrayed by changes that took no account of the work they did.



The LSC has accepted those initial proposals were unworkable and has produced a new set, with a six-week consultation period. The results should come into force in October.



The LSC justifies its drive to control costs on the grounds that childcare proceedings are the biggest growth area of the legal aid budget and that the level of growth is unsustainable. The number of legal aid certificates granted has risen by 32% over the last four years from 19,128 in 2002-03 to 25,216 in 2005-06, with expenditure going up by 62% from £128 million to £208 million.



Ms Blacklaws says the new proposals are a ‘decided improvement’ but there are still significant concerns, including a regional differential that will see a solicitor in Cornwall receiving almost double that of a practitioner in Manchester for some types

of cases.



Practitioners argue that the cost drivers that need to be controlled are experts’ fees and the lack of family judges and court time, which leads to huge delays. Squeezing fees could mean more experienced solicitors could stop doing the work, causing the ‘crumbling edifice’ of the family justice system to collapse.



As Ms Blacklaws points out, childcare practitioners are already a ‘dwindling and ageing’ population without any signs of a new generation taking up the mantle. The Law Society’s children panel has dropped from 1,900 members accredited to represent children in 2002 to 1,581 in 2006. Just nine are younger than 30, less than a quarter younger than 40, while the vast majority are older than 45. The panel may be further damaged, she says, by the LSC’s proposal to remove the 15% uplift that recognises the specialist experience of members, except in exceptional cases and advocacy work.



Add to that Department for Constitutional Affairs research that shows that, since 2001, the number of firms undertaking legally aided work for vulnerable children and families has dropped from 4,593 to 2,784 and the future looks disturbing.



And yet most are agreed that there is no more important work than cases where parents stand to lose their children. Sir Mark Potter, head of the Family Division, said in his evidence on the Carter reforms to the House of Commons’ constitutional affairs select committee that family judges are particularly dependent on the expertise of firms specialising in the representation of children for effective case management. He said the court has to be able to direct a party to undertake specific tasks and to rectify deficiencies in local authority preparation – and that party is ‘almost invariably the child’s solicitor’.



Certainly, there is no shortage of work. There are about 4,000 care cases a year, with 11,000 abuse-related hearings resulting in a court order. About 3,000 children a year are removed from their homes, while another 5,000 children remain subject to care orders who still have not been found carers.



Solicitor Caroline Little is joint chairwoman of the Association of Lawyers for Children (ALC). She says a greater understanding of child development means more cases are being picked up, while under-resourced local authorities take on mixed intakes of international social-work teams. As a result of their different approaches, some cases get left out and then picked up later. ‘There are also people coming from all over the world with different cultural norms, for instance over the punishment of children, which may not be acceptable here.’



The Carter review prompted the ALC to list the skills of childcare solicitors: a full knowledge of relevant legislation, extensive case law and court protocols; a working knowledge of social work and local authority practice issues; the ability to manage cases on behalf of the court; an understanding of risk assessments in child protection, of medical and child health issues and the causation of serious injuries, as well as psychiatric, psychological and personality issues. Those who represent children need special skills to draw out their evidence, as well as having advocacy skills from the Family Proceedings Court through to the High Court.



David Jockelson, a consultant solicitor with east London solicitors Miles & Partners, has specialised in care proceedings for 20 years. A parenting coach and trainee psychotherapist, he points out that ‘this is a highly charged area of law, which digs into people’s emotions’.



Mr Jockelson represents both children and parents. ‘It is one of the strengths of the system that those working with guardians for children also have experience of working with parents.



‘When you are representing children, you wear a halo in court. Working with parents is the more challenging side. You are taking on someone who is very often highly dysfunctional, may have learning difficulties, psychiatric disorders, personality disorders, drug and alcohol problems, is usually profoundly in denial and usually has had an abusive or neglected childhood themselves.



‘You need listening skills, persuading skills, negotiating skills and then, later on, paperwork and advocacy skills. But the real point is the work cannot be done by someone on the end of a phone or

a computer.’



He says the work is best characterised as painstaking. ‘I have just had an 86-page report examining a family, which traces the dysfunctionality and abuse both back over the generations and going sideways, and the only chance the children have of going home is if a great deal of psychotherapeutic work is done with the mother. But who is going to pay for that? Probably nobody, so these children will end up in foster care.’



Peggy Ray, senior partner of London firm Goodman Ray, also acts for both children and parents. For her, the key is ‘to keep your feet on the ground and have a good heart, to empathise without being drowned by emotion’. She adds: ‘What I find frustrating is running the business side of the work and having to deal with the bureaucracy of the legal aid system.’



She has thought carefully about becoming a peer reviewer. ‘Then I looked at the pay and it doesn’t make economic sense for an experienced practitioner to do it – so who is going to do it?’



The ‘one shining light’ on the legal aid front, says Ms Blacklaws, is the proposal to fund parents’ legal representation much earlier. However, she says the LSC ‘really missed a trick’ in not extending earlier representation to children, which could potentially mean more cases being resolved without the need for court process.



The whole area of child protection is under immense strain with high vacancy rates in local authority social services and legal departments. Sheri Holland, assistant head of legal services at Leicestershire County Council, is the lead professional on children’s matters for Solicitors in Local Government. She has specialised in this area for the last 21 years. With fewer solicitors doing this work, it is difficult to recruit, she says. ‘We have come to the conclusion that the best way is to recruit trainees and hope they will stay. It is a huge worry nationally. I have just advertised and I have four people to interview. The first advert only received one response.’



Pauline Troy, senior partner and head of the family department at south London firm Robert Blackford & Co, identifies other problem areas. ‘Social workers increasingly don’t have the confidence to express their own opinion. Ten years ago they would say, “This is what I think”. Nowadays they need an expert to say that. We have also lost a huge skill base with the creation of CAFCASS [the Children and Family Court Advisory and Support Service] and the loss of many experienced guardians.’



One thing all practitioners agree on is the importance of dealing with the traumatic nature of care cases. Ms Little says they can cause ‘burn out’. ALC conferences include stress management workshops, while her personal coping mechanisms include ‘walking the dog and talking to fellow solicitors who understand the pressures’.



Ms Blacklaws says her firm makes sure everyone has access to each other to talk through the horrors, and they offer external support if it is needed. She copes by ‘very rarely watching or reading anything sad. But I also want to emphasise that I feel immensely privileged to be able to do this work’.



Ms Troy agrees: ‘There are great rewards when you manage to keep a family together. I don’t keep myself awake at night because you have to move onto the next case. It might sound callous but we are here to do a job, not live other people’s lives.’



For Mr Jockelson, the UNICEF report that ranked the UK bottom in an assessment of child well-being in 21 industrialised nations shows ‘we have lost the plot on parenting’.



And that, he says, leaves child care solicitors as ‘the litmus paper where the problems of society show up most clearly’.



Grania Langdon-Down is a freelance journalist