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Revised Funding Code

My Lords, I, too, am grateful to the Minister for his exposition of the position. The Legal Aid and Advice Act of 1949, following the Rushcliffe review in 1945, proceeded on the basis that there would be equality of access to justice and that the right to representation is fundamental to a just society. It was thought to be, and rightly, one of the parts of the programme of the Attlee Government that introduced the welfare state; had there been more Members of the Government’s party here tonight, no doubt they would agree. It was decided at that time that there would not be a government service of salaried lawyers, which is one way of dealing with representation, but that rights were best secured by solicitors and barristers working in private practice but funded by the state. I reserve my comments on the Carter review and the means of funding legal aid in civil proceedings, which, as the noble Lord said, has long been the subject of debate and disputation. The noble Lord referred to the legal aid reform scheme—which is actually the ““less fees for lawyers”” scheme, a populist measure which the Government are pursuing. Suffice it to say that the Government always approach the legal profession as if it is a single, grand monopoly that can be broken up only by intense competition. In fact it is a highly competitive profession, both at the level of the high street solicitor and at the Bar. I wish tonight to focus on the removal of residential assessments from the scope of funding by the Community Legal Service, which is run by the Legal Services Commission. There was a seminal case—Re G [2005] UKHL 68—concerned with whether residential assessments in care proceedings under the Children Act 1989 which fell within the provisions of Section 38(6) should therefore be funded by legal aid. Very briefly, the facts of the case are as follows. A child, E, was born in May 2003. The second child of that family, R, had died of non-accidental injuries, and the eldest chid, J, was already in care with grandparents. The local authority therefore sought to remove the newborn baby from her mother's care. She was eventually admitted to the Cassel Hospital at the age of seven weeks, along with her parents. Assessment in the community of the mother’s ability to look after the child was regarded as a risk which the local authority was unwilling to take. Eventually the child and the parents received in-patient therapy for nine and a half months at a cost of £200,000. At the end of that time, the treatment was, happily, completely successful. The mother retained the baby, and the eldest child, J, was returned to her. The question was, who was to pay? Kent County Council refused and said the court had no power to make it do so. The period had been extended to nine and half months because the county council had not provided any accommodation, but nevertheless it was not willing to pay. The Legal Services Commission made it clear that the council was not to make public funding available for therapy or treatment but only for assessment. In the judgment, one of the noble and learned Lords said that, under the ECHR, "““There is no article 8 right to be made a better parent at public expense””." So the House of Lords Judicial Committee said that legal aid was confined to an assessment of the child and parents, the risks and so on, with a view to the court making a decision with a minimum of delay. That was all very sensible. Unfortunately, the Legal Services Commission has gone overboard and, as the noble Lord said, has banned funding altogether, even for the limited purposes referred to in the House of Lords judgment; namely, for making an assessment that is to go to the court to help determine where the child should end up. Following that case residential assessments continued to be directed and paid for in legal aid. Indeed, in a later case—Re V—the court overturned a previous decision of the family proceedings court and held that legal aid would pay for assessments even though that work included treatment and therapy. That was the position in March 2007 when the Legal Services Commission produced its proposals. It said: "““Reliance on residential assessments and waiting lists for placements contribute to delay and increased costs in court proceedings. There is little evidence that these assessments add sufficient value to the legal process to justify the costs and delay. ""The outcome of many of these cases is that children are made the subject of care orders. It is not appropriate that the legal aid budget be used in this way””." So there was no legal aid for an assessment of any sort to assist the court. The proposal was to remove residential assessments altogether. The noble Lord said that that was supported by a number of the respondents to the consultation. So it is, but you need to look at who those respondents are and why they support it. They are the Law Society, the Legal Aid Practitioners Group and the Association of Lawyers for Children. They told the whole story about why they supported the proposals to remove residential assessments from legal aid when they said: "““The transfer of payments for experts and residential assessments to other departments would free up resources which should now be ‘ring fenced’ for improvements in rates for family work””." Of course the lawyers support the removal of residential assessments and the costs, providing that the money is then spread out among the practitioners. Although I approve in a personal sense, from a political point of view that may not be the right way to go about things. How much is involved? The right reverend Prelate the Bishop of Ripon and Leeds asked a Question on 11 June, and I am pleased to see the noble Lord, Lord Adonis, in his place, because he gave the Answer. The Question was: "““What was the average cost to the legal aid system of residential assessments in proceedings under Section 38 of the Children Act””.—[Official Report, 11/6/07; col. WA 228.]" The noble Lord, Lord Adonis, said that he did not know. The Question was then repeated in another place on 9 July by Annette Brooke, the Liberal Democrat Member of Parliament for Mid Dorset and North Poole, who asked the Secretary of State for Justice how much we were talking about. The honourable Bridget Prentice said: "““Information on the cost to legal aid of residential assessments in care proceedings is not recorded centrally. Further work is being done to isolate these costs through a review of closed files at the moment””.—[Official Report, Commons, 9/7/07; col. 1299W.]" The Government do not know how much we are talking about, and the provision has been brought forward without anyone having any idea of the cost. Who is against the provision? The Magistrates Association—the people who make decisions on care proceedings. In the consultation process, the question was: do you agree that residential, "““assessments are outside the ambit of the legal aid budget as they are primarily about possible rehabilitation””?" It did not. It said: "““As long as the assessment is for the purpose of determining the ability of the parent to provide good enough parenting, and to establish the bond between parent and child, in a residential setting, at the time of the assessment, such assessments fall within the criteria of section 38(6) as assessments of the child.""For this reason it would seem to be more appropriate to restrict any residential part of the assessment of the parent to a length that gives sufficient time for the above factors to be determined. This would then satisfy the findings in Re G””." The magistrates said that the elements of the assessments that determine the ability of the parent to provide good enough parenting are justified, and were of the view that legal aid should pay for them, in accordance with the earlier decision of the Judicial Committee of the House of Lords. The Family Justice Council, which is also concerned—not so much with how much lawyers get paid as with whether justice is done to families, and whether proper assessments are carried out so that the right decision is arrived at in care proceedings—said that it had, "““grave concerns regarding the proposed withdrawal from funding residential assessments which ... will jeopardise the appropriate funding of proceedings designed to protect some of the most vulnerable children in our society””." It felt that: "““All of the assessments proceeded within a 12-16 week timescale. None involved unnecessary or unreasonable delay ... All of the cases involved genuine assessment of the child with its parent/s ... All of the cases involved residential establishments where the costs were comparatively modest. One charged little more than the mother's state benefits ... Each of these cases represents a ‘high risk’ situation where a court would be unable to authorise assessment of the child placed with a parent without 24 hour monitoring ... All involved new born babies””." We are dealing with a family that is completely hopeless and possibly even dangerous, and a small baby that has just been born. Should it stay with those parents or should the court be able to see whether the child is safe in their hands? The council pointed out that the critical client in each case is not the parent, but the child. How is it to be brought up—in care from the day when it is born? Is it to be given the chance of a proper assessment that would enable the judge to come to a different view? The council urged, "““the Commission to respect its obligations to other agencies in the family justice system and its wider obligations to the administration of justice””." It also went on to give illustrations which, having regard to the time, I will not go into, of other cases where residential assessment had been critical in determining the future of that baby for the whole of its life. We are considering a provision to produce these new rules; the aspect that I am talking about is tucked away at the very end of it. I am not here to oppose the rest of it; we cannot bring forward a prayer to annul it because of the procedures of this House. I hope that what I have said adequately underlines the point of my objection to the proposals and how I think that the removal of funding and the failure of local authorities to pick up the bill will lead to less judicially-considered decisions on the future care of children. The Government really ought to take that into consideration.