JusticeWatch: Running up the down escalator

Running up the down escalator
Family courts were having to ‘run up a down escalator’ to keep pace with unprecedented increases in childcare cases, the most senior family judge has said. According to The Guardian, Sir Andrew McFarlane, president of the family division, some parents needed to be persuaded not to bring claims to court in order to reduce the pressure.

McFarlane said it was not clear why, but the volume of cases had increased significantly since the beginning of 2016. ‘The number of “public law” applications for care or supervision orders – made by social services departments across England and Wales – has risen by about 25% over that period,’ the paper reported. ‘The number of “private law” applications – made by parents over their own children – has also been rising and is at an all-time high. Last year, there were 53,164 new private law cases lodged involving 123,334 children.’

‘The system is… trying to run up a down escalator,’ Sir Andrew said ahead of the launch of a public consultation on the family courts. ‘Everyone is working flat-out but delays are creeping into the system.’

Referring to cuts to legal aid that have left many claimants in the family court unrepresented, Mr Justice Cobb said that there were concerns about security. ‘Private law disputes are often highly emotionally charged,’ said Cobb who is in charge of private family law. ‘Judges are managing long lists with people for whom the court application [to gain access to or care of a child] is one of the most important things in their life,’ he said. ‘There are clearly security issues. It’s certainly a considerable issue for judges who deal with these cases.’

Poisoning our national conversation
The Lord Chancellor hit out at ‘populist politicians’ in a speech at the annual judges’ dinner in the City of London. The ‘forces of populism’ were much stronger than had been the case for some time which contributed to ‘a growing distrust of our institutions’, the justice secretary David Gauke told the audience.

Those grappling with complex problems were ‘not viewed as public servants but as engaged in a conspiracy to seek to frustrate the will of the public. They are “enemies of the people”,’ the MP said. ‘In deploying this sort of language, we go to war with truth. We pour poison into our national conversation.’

The Tory MP claimed to be ‘the first lord Chancellor in a while’ to have served long enough to deliver two speeches to the judges. The last lord chancellor to do that was Michael Gove but he left a week after his second speech when, Gauke said, ‘a new prime minister with whom he did not see eye to eye’ came into office. ‘How times have changed. I might only have three weeks,’ he quipped.

Labour’s legal aid commitment
Labour has been urged by its supporters to commit to a fully funded legal aid system in its next election manifesto, reported The Law Society’s Gazette. The call from Labour Campaign for Human Rights has been backed by former lord chancellor Lord Falconer and Andy Slaughter MP.

The campaign group wants its party to adopt the recommendations in the Bach Commission report. The commission proposed a Right to Justice Act which would ‘codify and supplement existing rights and establish a new right for individuals to receive reasonable legal assistance, without costs they cannot afford’.

The group says shadow justice secretary Richard Burgon MP committed to reform in 2018 ‘but no further action has been taken yet’. ‘Rights granted to British citizens are meaningless unless they can be enforced in the courts,’ commented Matthew Turner, the group’s chair. ‘That is why we are calling on Labour to treat the right to justice as a fundamental human rights issue. The Bach Commission recommendations must become official Labour Party policy.’

‘Legal aid cannot be seen as a fringe issue. Access to justice needs to be treated with the same level of seriousness as our education system or the NHS. It was the post-war Labour government that introduced legal aid, and we need to step up and defend that legacy now.’
Matthew Turner

Droughts & deserts
How helpful is it to talk of ‘advice deserts’? I asked an an article for the New Law Journal. I argued that the phrase was misleading insofar as it suggested that ‘people lucky enough to live outside of advice deserts can find advice or representation’.

The article flagged research by the barrister Dr Jo Wilding into the ‘market’ of publicly-funded legal advice in immigration and asylum advice.

‘The analysis applies to the entire sector and debunks the MoJ’s evidence-free assertion that ‘the market is sustainable at present’ in its recent LASPO review,’ the article continued. ‘According to Wilding, there is already a market failure “both in terms of geographical availability of services and the ability to ensure adequate quality”. She argues that the supply side of the market is “precarious” despite “robust demand” because of the problems inherent in the contract and fee regime.”

‘It’s a mad market model that drives quality out of the system but this is what is happening. Committed practitioners refuse to compromise their services but are forced to reduce market share to limit losses to the amount they can afford to subsidise whilst those that don’t give a toss clean up and provide a rubbish service for vulnerable clients.’
Jon Robins, New Law Journal

CCMS to be ‘a thing of the past’?
Legal aid lawyers’ frustrations trying to log on to the government’s digital billing system could become a thing of the past after the Legal Aid Agency revealed that another service will be introduced next year, reported the Law Society’s Gazette.

The agency has said it will roll out an Apply for Legal Aid service ‘which will reduce dependency’ on the troubled CCMS (client and cost management system). The Gazette reported that ‘technical glitches’ resulted in a family solicitor having to inform domestic violence victims that they must attend court on their own.

The article also flagged Dr Wilding’s report into the immigration legal aid market last month which identified additional unpaid time that providers spent dealing with CCMS and the associated frustration and stress as the ‘single most significant problem for providers, and a real threat to survival for some who felt they were already “on the brink” because of fee cuts’.

Ambulance chasing, basically
Lawyers have been branded ‘ambulance chasers’ for urging luxury flat owners to sue over Grenfell-style cladding despite warnings that they could face legal bills of £30,000, reported The Times.

‘The cladding scandal is a bean feast for their lawyers,’ ‘a specialist’ told the paper. It reported that Leigh Day ‘claims to have 58 people signed up for legal action over cladding at the New Capital Quay development in Greenwich, southeast London’. ‘Leigh Day was criticised in the aftermath of the fire after two of its clerks tried to tout for business from the victims. The pair quit the firm soon afterwards,’ it added.

Apparently, the insurers have agreed to pay for new cladding and however the lawyers argue the residents have strong claims for ‘additional losses’ such as loss of income and a fall in property values.

Michael Kain, founder of the law firm Kain Knight, told The Times it was ‘ambulance chasing, basically. ‘It’s a bit smelly … to approach everyone and say you may have a claim. Most solicitors wouldn’t do that,’ he said.

About Jon Robins

Jon is a journalist and has written about the law and justice for the national papers and specialist press for more than 15 years. Jon is a visiting journalism lecturer at Winchester University, a visiting senior fellow in access to justice at the University of Lincoln and patron of Hackney Community Law Centre. He has won the Bar Council’s legal reporter of the year award twice (2015 and 2005). Jon is editor and co-founder of LegalVoice

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