Public law working group calls for urgent legal aid review

The president's final public law working group (PLWG) report is out and calls for an urgent review of legal aid for parents. 

The report follows a judiciary-led review of the family justice system, comprising two separate groups looking at private and public law (the private law report was published last April).

The PLWG, chaired by Mr Justice Keehan, was formed before the pandemic began, to investigate the steep rise in public law family cases reaching the court – a situation compounded by covid-19.

It was asked for recommendations to improve the system’s ability to address the needs of children and families at the centre of such cases. The PLWG sets out 47 core recommendations, including around support for and work with families prior to court proceedings, applications to court and case management.

It also raises significant concerns around the lack of public funding for parents and the impact on family justice, calling for a reversal in legal aid cuts.

The report highlights the seriousness of the “adverse impact” of the Legal Aid Agency (LAA) seeking to cut public funding on the efficient administration of justice in care cases and on the fair disposal of proceedings in the child’s best interests.

The PLWG calls for longer-term change including public funding for parents during pre-proceedings, warning that if the report’s recommendations are to be effective, “the available legal aid funding for parents requires urgent review”. 

Funding, it states, must be enough to ensure the parents are properly represented by a suitably qualified and experienced legal representative throughout the process.  

This could then help reduce the number of cases resulting in court proceedings; and cut the costs of proceedings that have been issued. 

The report also calls for a review of public funding for those with parental responsibility “signing up” to section 20/section 76 accommodation.

Reversing successive legal aid cuts for those representing parents/carers in care cases would, the PLWG states, enable far more productive means to be established to avert the need for public law proceedings to be issued, at great public expense, in respect of a child and enable proceedings to be conducted and concluded far more efficiently and cost-effectively. 

The report goes on to say: “The goal should be to ensure that parents/carers who are the subject of proposed/actual state intervention in their family life have adequate means to be able to challenge the need for the same.”

Various organisations had expressed concern that if recommendations were introduced without an increase in legal aid, “it was unlikely that parents and carers would secure adequate legal advice and representation to ensure the process was balanced and fair”.

The PWLG had invited the LAA to consider increasing the sums made available to parents and carers to meet the costs of legal advice and representation to the public law outline (PLO) process.

Pippa Allsop, senior associate at Michelmores, said: "The final Public Law Working Group Report highlights how imperative it is for people to have access to proper legal support in public children cases. From an access to justice perspective, clearly this is essential. However, as the report also identifies, making sure that parents are 'properly represented by a suitably qualified and experienced legal representative' from the outset in such matters, would serve to alleviate the untenable burden currently experienced by the Court system, by avoiding proceedings altogether."

She added that in the family law sphere, the significant concerns relating to available funding and access to justice are "long-standing and widely voiced".

"The fact the report acknowledges that the success of its recommendations in this respect are dependent on the issue of public funding being addressed, adds further pressure to this ongoing issue. However, it is not the first urgent call to arms in connection with this issue, and it remains to be seen whether the report's 'invitation' to the Legal Aid Agency to consider funding support will elicit any formative change", said Allsop.