We understand that the Scottish Legal Aid Board is considering making changes to the requirements for legal aid for civil contact actions. We present the current proposals so that practitioners have the opportunity to consider these and make their own suggestions. This document clearly addresses the very practical issues which arise in connection with these difficult actions. Of particular importance is the issue as to the appropriateness of public funding in particular cases. We understanding that there is no such funding for these cases in England and Wales, except in very limited cases. We suggest that you make your suggestions, comments etc. via Slas by email to email@example.com so that views can be amalgamated and perhaps strengthened.
APPLICATIONS FOR CIVIL LEGAL AID FOR CONTACT PROCEEDINGS
1.CURRENT ASSESSMENT OF CONTACT APPLICATIONS
The Board has detailed guidance in its Civil Legal Assistance Handbook available on the Board’s website at www.slab.org.uk about the approach taken to the assessment of various categories of civil legal aid applications. The guidance contains general information about applications involving an order relating to parental responsibilities and parental rights.
All applications must address the attempts made to try to resolve the dispute. The guidance includes a requirement that detailed information should be provided to show why negotiations have failed, including the provision of copies of any relevant correspondence which may disclose attempts made to resolve matters without the need for litigation. The guidance for contact orders indicates that we need to be supplied with details about any reasons given by the opponent for withholding contact and details of all attempts made to settle the dispute by agreement, including the provision of documentation to support these attempts.
The guidance has remained unchanged for over 12 years with the exception of the inclusion of the requirement that we be provided with copies of correspondence showing attempts made to settle matters without resorting to litigation. This aspect was inserted into the guidance following the review of the reasonableness guidance in May 2010.
Prior to May 2010, basic information was usually supplied in response to questions about the attempts made to settle matters. This information often comprised one or two word answers such as “negotiations” or “negotiations failed”. To address the inadequacy of these responses the requirement to provide additional information was inserted in the guidance. It is however far from routine for such documentation to be supplied with an application for civil legal aid to pursue or defend a contact action. It is, in reality, not unknown for solicitors submitting legal aid applications to react with surprise, and sometimes negatively, when requested to provide this documentation.
This is less than satisfactory especially as a key consideration prior to making civil legal aid available is that all possible attempts have been made to settle matters without resorting to public funding.
It should be a requirement in every application for civil legal aid for contact proceedings that such documents are provided.
2.PROPOSALS FOR CHANGE
Our continuing programme of work has included a consideration of whether or not the current tests for contact cases remain fit for purpose. This work has been informed by findings in the high cost case work, together with findings from the civil best value review which has included examination of stage reports and requests for additional funding in excess of the default case cost limits.
In assessing whether or not civil legal aid should be made available for contact proceedings and in particular we propose that the key issues for examination should be –
· the attempts made to resolve matters without recourse to litigation;
· the extent of the dispute between the parties;
· the practical benefit any individual will get from the proceedings; and
· what a private fee paying client of moderate means would do if faced with the same set of circumstances.
This list is not intended to detail all of the factors taken into account in assessing whether or not to make civil legal aid available for contact disputes but rather, as stated above, it focusses on certain key issues which assist in identifying whether it is reasonable to make public funding available for the dispute.
2.1 Attempts to negotiate matters
Public funding should be made available where necessary and where the work to be done is proportionate to the issues involved. Accordingly, consideration has been given to revising the guidance in relation to contact disputes to request a far greater level of detail about the background history to any disagreement or concerns in respect of contact. This is to try to ensure that public funding for such disputes is only available where it is clear that litigation is essential to resolve fundamental matters of principle concerning contact.
The Board’s guidance should reflect the approach that may be taken by the private fee paying client of moderate means and we should ensure that all efforts have been made to try to resolve matters without recourse to litigation. Thus, an application should be able to:
A. make reference to and submit correspondence between parties and their solicitors directed at resolving the issue
B. detail the approach applicants have taken to any offers to settle a dispute or to take the issue to mediation
C. detail any offers made by the applicant to try to resolve a dispute through mediation or other dispute resolution method.
None of this suggests that all cases are suitable for mediation but a more focused and concentrated effort on resolving matters before raising a court action is appropriate where potentially extensive public funding is being sought to try to resolve a dispute.
Funding can be made available for mediation though advice and assistance or through civil legal aid where this is in place. Trying to resolve matters of consent, whether by way of correspondence or with some form of external support, is not only likely to result in savings for the public purse but will avoid the potential for the type of protracted civil litigation which is not likely to improve relations between parties who have a child or children together. Rather, such litigation has the potential only to exacerbate any tensions and as such should be discouraged where possible.
Legal aid should therefore only be made available once it is shown that extensive negotiation has taken place or that several attempts have been made to negotiate this matter without receiving any response. Applicants must be able to demonstrate that they have entered into such negotiations with the best intention of finding a solution or compromise to avoid litigation. Mediation should be attempted wherever possible and if this is not considered to be an option full reasons for this should be provided such as in situations involving domestic abuse.
2.2Extent of contact sought
A number of the applications for civil legal aid we receive concern the level or detail of the contact that may be being made available. Applications are made to increase non-residential contact to residential contact or to extend the period of contact. Making public funds available to argue the detail of contact arrangements may not be reasonable. Where contact is being withheld entirely and on the face of it, there is no good reason for this, then litigation may be required should all attempts to negotiate fail but there may be less necessity to provide public funding where frequency or residential aspects alone are being considered.
The Funding Code in England and Wales and the new merits criteria in place for the few family disputes where full representation is likely to be awarded, states that it is not reasonable to make legal aid available to argue detail or frequency issues but rather it will only be made available to argue the principle of contact. This is very restrictive. Although we do not suggest that that approach be adopted in its entirety in Scotland, granting public funding running potentially to several thousand pounds to determine a timetable for contact may not be appropriate. If there is any level of consent about contact taking place then it is preferable for parties to continue to work together outwith the court setting to put in place established routines with the possibility of increases in such contact being made over a period of time. It may be that the availability of legal aid may encourage long, drawn out and acrimonious cases which could potentially be resolved out of court if funding was not so readily accessible.
Legal aid should only be available for litigation if the areas of disagreement between the parties are such that any litigation will bring about a significant improvement in the arrangements that are in place in respect of the child/children and make a significant positive contribution to the best interest of the child/children.
2.3Comparison with a private fee paying client
Sustainable Future for Legal Aid stated, “legally aided clients should not be disadvantaged compared to those meeting their own legal costs, nor should they have an unfair or disproportionate advantage. This is sometimes referred to as increasing ‘private client reality’”.
Civil legal aid is in place so that those who cannot afford to pay for their own legal assistance are put on a “level playing field” with those who can. This comparison however has to be made against the individual with moderate resources, meeting their own fees privately and for whom the cost of bringing litigation privately could not be done without some degree of sacrifice. In view of this, in assessing applications for civil legal aid for contact proceedings careful consideration needs to be given to the extent of litigation that would be entered into by parties were they required to pay for the litigation themselves: the private client reality.
As Lord Reed noted in NJDB –v- JEG & another, it was inconceivable that any reasonable person would expend resources on the scale utilised in that case on a dispute over contact if the money was coming out of his or her own pocket. While the costs incurred in NJDB were exceptionally high, there remain a substantial number of cases funded with public money where the matter has been before the court for many years and where the costs of ongoing litigation would easily be beyond the resources of private fee paying clients.
Contact with a child is a very important matter but the extent of the litigation that should be entered into to resolve this issue needs to be examined closely.
There can be a number of factors which lead to long running cases. These include:
· the behaviour of individual parties
· the approach that the court takes to try to resolve the dispute
· the use of bar reports and psychologists
· the monitoring of supervised contact
· the court allowing contact in incremental stages and monitoring this through multiple child welfare hearings.
What is however undeniable, particularly in light of Lord Reed’s comments, is that it should not be the case that extensive public resources are expended on disputes that would not have been funded privately or that would not have followed the particular court route being followed were it not for the fact that one or more party could access public funding.
The assessment process should be designed to put the applicant in the same position as someone for whom the cost of private funded litigation could be met, but not without some degree of sacrifice.
4.CURRENT WORK ON CONTACT APPLICATIONS
We are currently designing an holistic review of applications for civil legal aid by case type. The pilot will consider a broad sample of contact applications where more than one party is seeking public funding. All the applications for civil legal aid applicable to any one court action will be considered.
This review will commence at the point any second or subsequent application for civil legal aid is submitted in respect of one court case. Where an individual is granted legal aid to pursue a contact dispute (subject to the current and potentially amended criteria for such actions) and a subsequent application for civil legal aid is made by, for example, a defender or a third party minuter in the proceedings then all relevant applications will be examined and re-examined. Depending on the information available, it may be that later applications are refused with steps also taken potentially to terminate any earlier grants of civil legal aid for the case.
We have found in a previous review of high cost cases, that information provided in one application may be wholly contradicted by information in a second application from a different party in the action. While different views and perceptions of events in family disputes are by no means unusual, it is concerning when information emerges in a second application that allege and provide third party evidence of a serious underlying issue/s likely to impact on the court’s approach to contact including –
· frequent and habitual drug use;
· social work department involvement; and
· police involvement.
These factors are not always drawn to the Board’s attention but in assessing prospects for success they could be highly relevant. Equally in defender applications, what can, at first blush, appear to be a reasonable basis for opposing contact can be contradicted by information available in the opponent’s application.
This pilot is likely to involve consideration of a minimum of 100 cases (not applications). This should allow the opportunity for examination of the issues in dispute in a broad range of cases. This work will allow an examination of a broad range of issues to help to determine whether the litigation is necessary and the costs proportionate in bringing the issues involved before the court.