BRENDAN FLEMING -PAIN COVENTRY FAMILY COURT WIN

[Alison J Stevens]

Here is a recent article in the Times – the most important newspape...

Here is a recent article in the Times – the most important newspaper in legal cirecles. It makes some salient points and reaffirms Brendan
Fleming’s excellent reputation in Family Law.

If we cut legal aid, do families not bleed?

Camilla Cavendish
Last updatedSeptember30 2010 12:01AM

As a poignant case in Coventry illustrates, slashing legal help for vulnerable people could prove disastrous

Two days ago, the parents of three children won the right to name the local authority that had tried three times to take those children into care before admitting that it lacked the evidence to support its
claims. Coventry City Council landed taxpayers with a £400,000 bill,
which Judge Clifford Bellamy, sitting in the High Court, said was a
“matter of concern” when the “children were happy, settled and, within
the bounds of what is possible in the confines of their overcrowded
home, well cared for”.

On the day that the High Court is due to rule on a last-ditch attempt to save the legal aid contracts of 1,100 family law firms, this is a story that shows just how much we need legal aid and how it can be
abused.

In 2002, after the couple’s second child was born prematurely, Coventry council was contacted by a health worker who was worried that the family were over-using medical services and subjecting the children
to unnecessary hospital admissions. This immediately triggered
suspicions of “fabricated illness”, a condition in which parents
exaggerate children’s medical symptoms. The suggestion was that the
parents were more worried than was normal about their premature baby.
His name was placed on the at-risk register under the category of
emotional abuse.

Yet the parents ‘ attitude was not entirely surprising. One child suffers from serious visual and co-ordination difficulties. One had a hernia and a haematoma, and was almost killed by an overdose of
morphine wrongly administered by a nurse. Their GP said he did not view
their visits as excessive.

A more relevant concern was perhaps that the house owned by this family is clearly too small for them. The council worried that the house was chaotic and untidy and that the family were in debt. What
they needed was support. What they got was, they felt, harassment. The
council repeatedly noted that they showed a “marked failure” to engage
with social services, and that the children did not have a relationship
with their paternal grandparents. “We are still looking over our
shoulder”, the mother told me yesterday.

The case against these parents rolled on through the system, gathering more and more nonsense on the way. In the High Court, Judge Bellamy found that social workers had relied on one medical report,
compiled for them by an expert, without properly challenging that
expert, and without considering the children’s genuine health problems.
Only one health professional had ever expressed a concern about
fabricated illness six years before the case was brought. Judge Bellamy
ordered Coventry council to pay 100,000 towards the parents’ court
costs, and has allowed it to be named although the council racked up
more public funds resisting this, claiming that “this family could now
be identified in their community, and this could cause them harm”. The
family wanted the council to be named. They want accountability. They
want an apology.

The parents were lucky to have a good legal aid solicitor. For most of the case, they and their solicitor stood alone against the council, the guardian ad litem and the children’s solicitor. Their team had to
read through 4,500 pages of health and social work records presented by
the council an outrageous burden. Far from having his nose in the
trough, Brendan Fleming, who acted for the parents, made
representations to the court that the medical report was excessively
long and wastefully expensive.

The question is now how many solicitors will continue to be able to do such work. This afternoon the High Court is expected to rule on whether the Legal Services Commission LSC) acted lawfully in awarding
new legal aid contracts to only 1,300 of 2,400 family law firms. These
contracts were due to start tomorrow but have been suspended until
November, pending the outcome of the Law Society’s judicial review.

The LSC says that its aim is not to cut the budget, simply to allocate the same amount of legal aid between fewer high-quality firms. But there is widespread concern that some experienced childcare lawyers
have been left off the list in favour of others that charge knockdown
prices. I have watched both at work, over the years. I know whom I
would prefer to have on my side in navigating the very complex family
justice system.

I find talking to lawyers about legal aid a bit like talking to advocates of the international baccalaureate. The top-line argument is easy to grasp, but the detail quickly becomes opaque. Every change that
has been made to legal aid has brought apocalyptic predictions from the
legal profession. The introduction of fixed fees two and a half years
ago, for example, does not seem to have led to the disastrous short
cuts that were predicted. But I suspect that, just as the lawyers have
shouted themselves hoarse, we maybe now at a genuine tipping point.

As the Government undertakes yet another legal aid review, there is clearly a risk of cutting to the point where some people who need legal aid are denied it or that it becomes, increasingly, a trainee solicitor
acting in the Crown Court without supervision.

Money is tight. Kenneth Clarke’s Ministry of Justice must deliver 2 billion of cuts from its 9 billion budget. The legal aid budget is 2 billion and rising inexorably. Far too many cases seem to come to court
that should be settled outside particularly divorces and custody
battles in which one parent is using the children as pawns to fight the
other.

Yet the family justice system is in a terrible state. Cafcass, the organisation that is supposed to provide children ‘s guardians to the courts seems to be in meltdown. Cases are delayed, waiting for
guardians, which can only harm children whose parents really are a
danger. Social workers are overwhelmed. If lawyers start to take short
cuts then the risk of wrongly removing a child, or wrongly leaving one,
can only rise.

Coventry council treated the legal aid budget, quite wrongly, as a limitless pot to pursue a traumatised family. Yet that family could not have defended itself without legal aid used wisely by a good lawyer.
The Government has no duty to bankroll solicitors. But it needs to
tread carefully to make sure that it does not deny access to justice.

Camilla Cavendish was named Campaigning Journalist of the Year 2009 for her work in exposing miscarriages of justice, which convinced the Government to open the family courts to the media in April 2009.

© Times Newspapers Ltd 2010 Registered in England No. 894646 Registered office :1 Virginia Street, London, E981XY Value-Justice.