access to fair proceedings and the Risks of harm to - PowerPoint Presentation

1. access to fair proceedings and the Risks of harm to children,societyA transformative methodology for access to justice.Dr Jane Krishnadas, concept and convenor clock, senior lecturer keele university.Falling through the public and private divide in Family Law;

2. Thanks to Social Legal Studies Association for opportunity to present summary of research contributions towardsThe JUSTICE Working Party “Improving Access to Justice for Separating Families”. Chaired by Prof Gillian DouglasThe ministry of justice LASPO Means and merit test review, ministry of justice Krishnadas, J.h. “Who needs what, where and when? CLOCK , The Community Legal Companion: a transformative methodology to identify, resources and navigate legal needs through the family justice system, in “What is a Family Justice System for?”, Hart Bloomsbury Onati Series, Mavis Maclean

3. LASPO- Dividing public and private funding/sphereThe ministry’s four Objectives of Laspo reforms: “Discourage unnecessary and adversarial litigation at public expenseTarget legal aid to those who need it mostMake significant savings in cost of the schemeDeliver better overall value for money for the tax payer”“our Overall conclusion was that while it had made significant savings in the cost of the scheme the ministry ad harmed access to justice for some litigants and had not achieved the other three our of four of its stated objectives for the reform (House of commons justice Committee, Impact of changes to civil legal aid under part 1 of the legal aid sentencing punishment of offenders act 2012, eighth report of session 2014-2015)

4. Removing public funding from the private sphereWong and Cain (2019), refer to hunter et al (2017), Kaganas, 2017, mant, 2017; “reflect a neo-liberal ideology of ‘responsibilisation’ where parties are encouraged to be responsible for resolving their ‘private disputes’.

5. Private law Working groupIn 2018, Sir Andrew McFarlene proposed a Private Law Working Group to respond to the upsurge in the applications for private law children arrangements. The private law working group conducted an extensive consultation and produced a report which directed future strategies around wider social responsibility moving cases out of the court system.Shift from private law to Mediation

6. Public law working groupPublic Law Working Group to address the steep rise in Public law proceedings, for which the report has steered to consider measures to My view now is that the system, that is each of the professional human beings that I have just listed, is attempting to work at, and often well beyond, capacity. As one designated family judge said to me recently, the workload and the pressure are “remorseless and relentless”. I am genuinely concerned about the long-term wellbeing of all those who are over-working at this high and unsustainable level. Some have predicted that, if the current situation continues, the family justice system will “collapse” or “fall over”, but, as I have said before, I do not think systems collapse in these circumstances. Systems simply grind on; it is people who may “collapse” or “fall over”. Indeed, that is already happening and I could give you real examples of this happening now.'divert those public law applications made by local authorities to private or informal arrangement

7. Falling through the gapIf LA shift cases out of public law Due to not meeting the risk threshold for state interventions then parties need private law proceedings to formaliseChildren arrangementsNon-molestation ordersSpecial guardianship orders This summary will review CLOCK cases which seem to have fallen through the gap, particularly over the last 12 months of the Covid lockdown.

8. Rights based approach to LASPO; everything out of scope unless incompatible with human rightsArt 6 Right to fair proceedings; steel and morris v uk (2005) – lack of legal aid violated art 6, “each side must be afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis a vis the adversaryThe question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia on the importance of what is at stake for the applicant, the complexity of the relevant law and procedure and the applicant’s capacity to represent himself or herself effectively

9. Rights based approach to laspo; ART 8 Art 8 Right to respect for family life, home and correspondence No interference with the protection of this right by a local authority, unless lawfulQualified right – re rights of the child, welfare principle- child protection re risk of significant harm.Hence public funding is available for legal aid due to what is at stake for the applicant, the complexity of the relevant law and procedure and the applicant’s capacity to represent himself or herself effectively

10. Falling through public and private gapRights protected in the public sphere but not the private sphere??????????? what is at stake for the applicant, the complexity of the relevant law and procedure and the applicant’s capacity to represent himself or herself effectively

11. https://www.thejusticegap.com/devastating-legal-aid-sector-responds-to-laspo-review/Devastating’: sector responds to LASPO reviewCLOCKKeele University’s Community Legal Outreach Collaboration (CLOCK) acts as an assistance and signposting service, noting in their submission that since LASPO there has been an ‘increased lack and scarcity of resources to provide early legal advice and legal representation’. This has led to a noticeably increased dependence on their services. CLOCK state that both the complexity of cases and the vulnerability of clients, is ever-increasing, with many coming to them having been refused legal aid on narrow technicalities. The areas of private family law and public care cases have both been detrimentally affected, with CLOCK going as far as to suggest that the lack of legal aid in some cases constitutes ‘a significant breach of public duty in relation to failing to safeguard the child against the risk of harm.’

12. Clock; underpinning research, rights as a transformative methodology Clock is a direct application of Krishnadas’ underpinning research, summarised in “(2008) RIGHTS AS THE INTERSECTIONS: REBUILDING CULTURAL, MATERIAL AND SPATIAL SPHERES – A TRANSFORMATIVE METHODOLOGY, Krishnadas JH. 2008. In Cultural Practices, Political Possibilities. Dasgupta R (Ed.). Cambridge Scholars. Transformative methodology centres the experience of the most marginalised to reconstruct traditional rights theory based on post colonial feminist discourse to question:Who? Is claiming rights, how identity may be understood to reflect agencyWhat? Is being claimed, how resources may be understoond to revalue capacity Where? Are Rights are being claimed? How the location of rights in the public and private sphere may be relocated … and critically in the application of CLOCK:When are rights claimed, understanding the how rights needs may be transitional at different points of time?

13. CLOCK, as a feminist legal engagement didi herman’s ‘the connection between rights acquisitions and the transformation of social relations. Such a bridge must be built. Not awaited’ (Rights of passage, 1994, 9)Rights regime – relations of ruling Intersectional – centres voices of experience, Collaborative – public, private and third sector – Holistic – signposting out to law firms, charities, domestic violence organisations, Relational – role of community legal companion

14. From 2012 -2021Clock cascaded to 9 court centres operated by law school collaborations with local partners clock.uk.net, assisting more than 5,000 lips

15. CLock envisioned to signpost out to partners… but consider counter referrals

16. Clock data- lockdown18th March 2020 to 18th March 2021

17. – public agencies signposting in to private family law.

18. March 2021 public law reportThe working group will aim to achieve the following: i. to consider measures which may be taken to divert those public law applications made by local authorities to the Family Court which could be “stepped down” with a focus on: (a) the internal processes undertaken by local authorities to determine whether and when to issue an application to the court for public law orders; (b) the extent to which there is compliance with the pre-proceedings protocol; (c) the identification of “blue water cases” to be contrasted with the “grey cases”, as considered by the chief social worker: including the increase in the number of children returning home to their parent(s) under care or supervision orders in some local authority areas;

19. The cases signposted by Local Authority HAVE FOLLOWING FACTORS: i) Risks of harm raised by Parents, Schools, GPs, DV services re risk to child based onNon-return of childDomestic violenceSubstance abuseMental health issuesParents having no contact with a child for over a year.

20. REASONS FOR Local authority children services signposting to CLOCki) not meeting the ‘threshold’…for state intervention.. But consider risk?ii) cases where the LA have been involved but once child is seen at lower level of risk moved to private law proceedings iii) Social worker appointed for assessments where risks to child identified in private law proceedingsiv) Discharge of Care/ Interim Care Orders-  and need to apply for Child Arrangementsv) Application for Special Guardianship Order – vi) Relatives (i.e Grandparents, Aunties, uncles) making Child Arrangement applicationsvi) Birth parent appealing a placement order

21. Signposting out

22. Signposting back to cLOCK … CLOCK COMMUNITY LEGAL COmPanions, assisting within remit of the mckenzie principles 89 CHILD ARRangement cases assisted in formal proceedings50 % of child arrangement proceedings

23. Stakeholder evidenceCAFCASS regional manager, increase of 33,000 cases in private law since 2 years ago Strategic Manager of Children Services, stoke noted the highest rise of DV cases in December, with combination of mental health and substance abuse high risk factors.Director of Lewis Rodgers legal aid solicitor noted the increase of 25% of DV cases above working at full capacity.Stoke Court - noted backlog of private cases due to Covid and increasing complexity of cases - some of which demanding listing of 4-5 days due to the seriousness of the allegations. Domestic abuse and family court working group – York – Children services noted no consensus on how to identify risk

24. How do we define risk in public and private sphere?Different criteria of identifying risk in the public care proceedings ; public funding Compared to private law proceedings, out of scope for funding;Moj Harm report, Domestic abuse and family court working group, led by carmel offord, Proposal from justin Vaughan of children and young people services in York local authority, that we need a uniform risk matrix across services; police, care, cafcass (across the public and private sphere).

25. Public law reform report concernsPara 28. “First, a number of organisations were concerned that if our recommendations in respect of support for and work with families prior to court proceedings were introduced without an increase in the amount of public funding provided by the LAA, it was unlikely that parents and carers would secure adequate legal advice and representation to ensure the process was balanced and fair”

26. Recommendation for pre-proceedings representation 80.Recommendation 4: Public funding for parents during pre-proceedings. For the recommendations in this report to be effective with parents having the benefit of the levels of legal advice they need, the available legal aid funding for parents requires urgent review. The funding needs to be at a level that ensures the parents are properly represented by a suitably qualified and experienced legal representative through this dynamic process. If provided, this may contribute to a reduction in the number of cases that result in court proceedings; and where proceedings are issued, by reducing the cost of those proceedings through making available to the court high-quality evidence from the pre-proceedings process.

27. Private family law exceptions: dv and child protection subject to the Means and merit test Once in the private arena the parents are unable to satisfy the means or merit test. deemed to be manageable for lips to manage and risk factors may not be identified in the initial cafcass safeguarding interviewsYET - the complexity of the case remainsWhat’s at Stake Remains – right to family life/welfare of the childThe emotional impact on the litigants in persons remain–. Yet – the risk to the child remains, yet critically without oversight….cases are unseen until/if presented In court.

28. National Delays in private proceedings, increase riskRichardson and speed (2019) note “this is having a visible effect on local family courts where it can now take months to have a first hearing listed in a family case. For a parent who is being prevented from seeing their child”

29. Reasons for not meeting merit testCannot provide evidence for dv gateway:Evidence inconclusive for dv – police disclosuresCannot provide/afford medical evidence for drugs, Alcohol or mental healthLimited understanding of laspo requirements from gp, La, idvas

30. Reasons for not meeting the means testi)Low income due to minimum part time work, particularly where child care costs. ii) Trapped Assets – in shared property no longer accessible, vehicle or savings for child 

31. Q impact of trapped assets’ CaseCLOCK case signposted by New Era Domestic Violence Refuge, due to police-evidenced domestic violence and threat of child being taken out of the countryMother on Universal credit, no income but trapped assets in marital homeApplication refused and then resubmitted based upon the ‘Trapped Assets Case’ R (oao GR) v Director Of Legal Aid Casework [2020] EWHC 3140 (Admin) ‘Trapped Assets Case’ https://www.bailii.org/ew/cases/EWHC/Admin/2020/3140.html The client has been assessed out of scope based on the disposable capital limit of £8000 (she has an assessed capital of £9456.26)In this refusal there has been no mention of re:GR (trapped assets consideration) which was included in the application, if the matter is to be appealed we would reiterate this to the LAA.

32. Clock findings; Barriers to Art 6 access to fair proceedings.Barriers to access fair proceedings as a Litigant in Person i) unable to understand and engage with proceedings – due to anxiety, literacy, language, mental health and technology barriers (for online proceedings).ii) unable to fund expert reports for drugs, alcohol, and psychological reportsiii)  unable to present evidence regarding sexual and domestic violence in a legally coherent way when self-represented in fact finding hearings.iv) no funding (or availability)  for supervised contact- delaying/denying parental contact for months case examples may be discussed in q&A/follow up submissions to the working party/laspo review.

33. 2018- Clock evidence accepted for LaSPO review M Lucy Frazer QC, MP Parliamentary Under Secretary of State for Justice affirms “The CLOCK evidence submission has raised particular issues to inform i) “a comprehensive review of the legal aid means testing thresholds”ii) “proposals for extending eligibility for non-means tested legal aid for parents, or those with parental responsibility, who wish to oppose applications for placement orders or adoption orders in public family law proceedings” andiii) “to expand the scope of legal aid to cover special guardianship orders”, extending public funding for private family law. E6.

34. Evidence based : Specific recommendations (Justice working party/MoJ review) multi-agency triage and risk assessment collaboration ensure the sharing of information (Evidence gathering templates to Gps, la’s, DV charities to identify risk and specific eligibility for legal aid tasks ) Signposting for provision of funding for task based legal aid pre-proceeding advice, expert evidence, supervised contact and legal representation in fact finding hearings.

35. Conceptual Recommendations Overall the paper proposes public funding should be centered to respond to the changing identity, needs and situation of the litigant in person over time to prioritise their agency, capacity and transition through a multiagency and holistic pathway for transformative justice across the public and private sphere.