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At a judicial review directions hearing this morning, the High Court granted the Law Society’s application for an expedited hearing of its challenge to the Legal Services Commission’s conduct of the tendering process for family legal aid contracts. The hearing will be heard on Tuesday 21 September with judgment expected to be delivered on Friday 24 September.

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The court also ordered that the new contracts should not be issued pending the hearing of the case, though the LSC’s work on appeals and verification will continue. The LSC has agreed that existing civil legal aid contracts will be extended by one month.

See Law Society news item here.

Hat tip to Noel at Philcox Gray & Co.

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Discussion with my charming oppo this week about his reputation for verbosity (a characteristic I occasionally  share – no, really) has prompted me into taking pre-emptive action. I present therefore, the condensed response to the Family Justice Review questions. As my dad always told me: ‘ask a silly question…’

Question 1: What does the family justice system mean to you? What should the purpose of the family justice system be? What should not be included in the family justice system?

Don’t confuse the witness – that’s three questions! The family justice system is a mechanism through which disputes between adults and parents can be resolved where other methods have failed, through which vulnerable adults can acquire protection from violence or abuse, and through which the state’s exercise of its responsibility to protect children can be properly scrutinised. It’s purpose is to strike the balance between the rights and needs of children and the rights and needs of their parents, to intervene as between parents and to check the intervention of the state into families. The family justice system should not provide a forum for ventilation of parental, spousal or ex-partner dispute or for the apportioning of blame except insofar as that is necessary in order to establish and ensure the welfare of children and / or vulnerable adult parties. The family justice system should not provide a ‘day in court’ simply in order to give bitter exes an opportunity to spout venom and bile.

(more…)

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A couple of pieces in the Guardian which are worth a read: here and here. No soundbites, just common sense and a thoughtful approach to the problems. The first, by a very sensible and knowledgeable family magistrate, almost makes me waver in my long held view that family cases are unsuitable for disposal in the magistrates…Almost.

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Everyone’s at it. Now the Law Society has launched a JR of the LSC in respect of their tender process in family matters. See the Gazette. As reported yesterday another JR application yesterday got off to a positive start, with Collins J describing the LSC’s approach as irrational. That matter was adjourned off for 8 days. So that’s 2 JRs, and if Nearly Legal is right (see yesterday’s post) there may be more to come. Who says there’s no legal news in August?

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Nearly Legal has posted a really important blog post on the LSCs shifting position on the question of matter starts given to firms under the recent tender process. He suggests that the LSCs new position may now put it in breach of its own tender rules and at risk of legal challenge from firms who were unsuccessful in the tender bidding process.

If you are from a firm who has lost out in the tender process to a local firm who successfully bid for a large number of matter starts you should read this NOW and circulate it widely.

POSTSCRIPT:

Email from a colleague:


Though it applies to housing rather than family, the judge criticised the arbitrary nature of the tender process.
High Court judge has today branded some of the criteria used by the Legal Services Commission in its recent social welfare tender ‘utterly absurd and totally irrational’.

Mr Justice Collins also said the ‘tick-box’ exercise adopted by the LSC was not appropriate for tendering to provide a public service that is designed to ensure access to justice.

Collins made the comments during a hearing in relation to a judicial review of the social welfare tender process which has been lodged by Birmingham firm The Community Law Partnership (CLP).

CLP claimed the criteria and scoring system used by the LSC to award contracts was irrational, because the system rewarded firms that took more appeals to the upper tribunal. It said firms that were more successful in the lower tribunal were penalised.

CLP, which specialises in housing law, had unsuccessfully appealed against the LSC’s decision not to award it a contract.

The judge said: ‘I am bound to say this is a dreadful decision and on the face of it the approach [taken by the LSC] is totally irrational.

‘How can it be rational to penalise a firm that takes fewer cases to the upper tribunal, when any decent firm will do its best to make sure it doesn’t have to appeal?’ he said.

Collins added: ‘If firms have a good record of ensuring they succeed in the lower tier tribunal, then appeals to the upper tribunal won’t be needed. To adopt a criteria which looks to the number of appeals to the upper tribunal and punishes those who do not need to appeal to it, because they are successful in the lower tier tribunal, is utterly absurd and totally irrational.’

He said: ‘There is ample evidence that this is a highly reputable and utterly efficient firm that is approved of by the judges, and you’re going to ruin it. You’re bringing it to an end as a result of this decision. How can you justify that? You can’t.’

Collins asked counsel for the LSC, Peter Oldham QC, if a firm’s reputation could be taken into account or whether it was simply a ‘tick-box exercise’.

Oldham replied: ‘I’d hope they’d take everything into account,’ but said the LSC had to comply with public contract law and could not exercise discretion.

Oldham said: ‘The tender invitation went out last year. If they wanted to argue about the criteria they should have done it then, not now.’

But the judge said: ‘Those tendering are entitled to take the view that access to justice criteria will be taken into account and discretion used, rather than just box ticking.’

Collins adjourned the hearing and advised the LSC to ‘consider carefully’ its position. ‘If you fight this and lose it, you could set a precedent,’ he warned.

Collins said that if the LSC’s decision not to award a contract to CLP remained unchanged, he would expect a judicial review to succeed.

‘I take the view that it’s not only arguable, but it would be difficult to dispute that the criteria relied on to mean this firm didn’t get a contract is totally irrational,’ he said.

POST POST SCRIPT: Nearly Legal has also posted on this JR. I understand the full hearing is scheduled for c 10 days time. Watch this space…

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Thank Goodness for that – the new(ish) President of the Family Division has decided not to renew the guidance and may scrap the duty guardian scheme. See this article extracting an interview reported fully in Family Affairs.

On another note, a proposal to scrap CAFCASS and to reallocate it’s responsibilities to local authorities. Clearly something pretty radical needs to be done, but I’m no fan of that as a solution – whatever arrangements are made it is crucial that arrangements for the provision of Guardians, and to a lesser extent for reporting in children matters to be independent of local authorities.

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Much in the press recently about the use of direct payments by disabled persons for sexual services. And very hot under the collar everybody is getting about it too. See Community Care, and again in Community Care and Care Space.

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I have some direct experience of this (ahem – not that direct) in that whilst training as a lawyer, I was employed as a personal assistant for a physically disabled adult man who as a result of his disability found the whole issue of intimate relationships very difficult. I was paid by direct payments. In the course of my employment we had many debates about the ethical and legal issues surrounding the ‘what ifs’ of him paying for sex, when he could not achieve this without the assistance of his employees to transport him. We never reached a conclusion: it is pretty intractable.

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A severely physically disabled person’s need for sexual fulfillment, his right to privacy and to family life is necessarily impinged upon by his practical day to day care needs, and there is often a conflict or tension between the rights of the disabled person and the legal rights of his carer or assistant as employee. This is one such area. And of course overlaid upon that are the legal and ethical difficulties with the often exploitative sex industry.

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My debates with my boss tended to move in circles and never reached resolution, but for my part I kept coming back to the question of why, if the exploitation of women through the sex industry is wrong, we should suspend that tenet simply because the person purchasing the sex is disabled. That does not bely a lack of understanding for how a disability can make forming relationships much more difficult (or can make sexual acts practically very difficult to achieve), but I don’t think that you can abandon the rights of one group in favour of another: the potential consequences for women abused and exploited as a consequence of the sex industry are far more grave than the consequences of not finding sexual fulfillment, which many people both disabled and able bodied have to deal with in their lives. I don’t think that there is an easy solution to this debate, but perhaps the provision of regulated and legal services to those with disabilities (sex therapy?) may be part of it, along with support to ensure that those with disabilities are able to integrate better socially and therefore are supported in forming relationships like the rest of us?

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