This is a post by Sarah Phillimore and represents her views about the Daily Mail which she hopes, but cannot assume, are shared by other members of the Transparency Project.
It is always illuminating to run things through the Daily Mail translator. It is a great shame that one of the most widely read newspapers in the UK persists in journalism which at best is click bait, at worst actively dishonest and agenda led. Of particular concern to family lawyers is that agenda currently appears to be an attack on legal aid for parents in care cases.
On August 16th 2016 the President of the Family Division published a “View from the President’s Chambers’.In brief, the President discussed the continuing and significant rise in the number of care cases coming before the courts. There will be no corresponding increase in resources – something has got to give. We lawyers are urged to improve our efficiency, to deal with more cases, more quickly.
However, the President recognized that cases about removing children are serious. Speed is not the all-consuming goal. He set out clear principles.
Care cases, with their potential for life‐long separation between children and their parents, are of unique gravity and importance
It is for the local authority to establish its case
Common‐law principles of fairness and justice demand, as do Articles 6 and 8 of the Convention, a process in which both the parents and the child can fully participate with the assistance of representation by skilled and experienced lawyers.
Of course, adherence to both or either Articles 6 and 8 of the ECHR does not necessarily require reliance on many or expensive lawyers. There are care cases that are simpler than others. The President considers some possible economy measures, such as greater reliance on ‘settlement conferences’ or taking a closer look at the operation of the ‘tandem model’ which currently exists in care proceedings i.e. that the child is represented in court by both a guardian and at least one lawyer. In complex cases the child’s solicitor could be assisted by a junior barrister and/or a QC.
The President comments:
This, I emphasise, is as it should be. But we need to remember that all this costs money. I repeat in this context what I said in Re L  EWFC 15, para 38:
“I end with yet another plea for restraint in the expenditure of public funds. Public funds, whether those under the control of the LAA or those under the control of other public bodies, are limited, and likely in future to reduce rather than increase. It is essential that such public funds as are available for funding litigation in the Family Court and the Family Division are carefully husbanded and properly applied. It is no good complaining that public funds are available only for X and not for Y if money available for X is being squandered. Money should be spent only on what is “necessary” to enable the court to deal with the proceedings “justly”. If a task is not “necessary” – if it is unnecessary – why should litigants or their professional advisers expect public money to be made available? They cannot and they should not.”
The President concluded:
From my perspective, the focus of this is the question of whether, at certain stages in the proceedings and at certain type of hearing, there could properly be scope for dispensing with the attendance of some, or even, in some circumstances, all, of the child’s professional team. But, I emphasise: so far as I am concerned, none of this can be allowed to prejudice the fundamentals of the tandem model.
So what happens when we run this through the Daily Mail translator? It comes out like this:
Too much is being spent on child cases, says top family judge: Sir James Munby demands number of taxpayer-funded lawyers is cut
- Too much public money is being spent on cases involving children in care
- Sir James Munby said cash was being ‘squandered’ on lawyers
- He said the number of taxpayer-funded professionals should be cut
In a short piece, the pejorative word ‘squandered’ then appears four times. His ‘plea’ for careful husbandry of public money becomes a ‘demand’ that professionals are ‘cut’.
‘Squandering’ is then linked to the ‘scandal’ of the legal aid payments incurred in the Ben Butler case. It seems that the Mail have at least paid better attention to their arithmetic this time, no doubt assisted by Lucy Reed’s helpful explanation about why their previous quoted figures of £2 million as the costs of this case, were so wrong.
However, The Mail do not explain why it is apparently an automatic ‘scandal’ that parents get legal aid if the state wishes to take their children away, or why such a terrible, unique and atypical case as that of Ben Butler should provide the foundation upon which rests such condemnation of an entire system. There is no reference in the Mail article to the President’s other comments or clarification that he is referring to possible efficiencies when looking at the tandem model; for example, considering whether lawyers for the child are necessary at every interim hearing, rather than wholesale slashing of family lawyers for the duration of the care proceedings. The picture the Mail paints is – as usual – crude, incomplete and misleading.
I do not argue with the need for efficiency. I accept that public money is finite and must be spent wisely. But family lawyers now operate in a system that has already been cut to the bone, for example, where interveners facing allegations of life changing seriousness must fund their own legal representation. Where is all this fat that we can trim?
Nor are ‘top lawyers’ sprinkled around care cases like so much irresponsible confetti. It is very difficult to secure funding for a QC. In almost 20 years of practice I have asked for such funding five times. I have been refused every time.
Such irresponsible and deliberately inaccurate reporting by the Mail is not simply annoying for family lawyers. It has real and serious consequences. The President commented in his View that the reasons behind the relentless rise in care proceedings were ‘little understood’.
We disagree, those of us who have read Dr Ray Jones unpicking of the aftermath of the death of Peter Connelly. One reason why care proceedings continue to rise is likely to be linked to the culture of fear, blame and shame around social workers that newspapers such as the Mail and the Sun so enthusiastically promoted at the time, and continue to promote. In the face of a tabloid monstering, local authorities have become increasingly risk averse, which has been noted and decried by many academics and researchers – see for example the conversations at #CPConf2016.
I suggest that one way to save money in care proceedings would be to stop publication of inaccurate, partial and fear mongering bilge and instead promote reasoned and well informed debate about care proceedings. When should they be initiated and how they should be funded? These are important issues; they matter. They should be discussed and reported upon with the care they deserve.