What happens if I want to change my legal aid solicitor in care proceedings?

Thanks to TakenUK and DVHurts for their contribution to what sounds like a very necessary discussion. I am particularly concerned to hear that parents are not routinely given a copy of the court bundle. Little wonder distrust and suspicion grows.

This is a guest post by TakenUK. 

As where most interesting discussions arise these days, one recent twitter topic was that of issues arising from changing legal aid solicitors. A simple process you may think, but if you have a legal aid certificate, the myriad of problems associated with this is enough to drive any to the proverbial bottle.

Problems start to arise the moment a client elects to change representation, either due to the relationship between client and solicitor breaking down or when the client feels that a different solicitor is better suited to their cases requirements. I focus here specifically on the first request to change, not subsequent requests by the same client. In the past, changing law firms was troublesome but not as it is now, as the LAA insists that the client must lodge an official complaint against the solicitor and the current solicitor must attempt to remedy any issues, before the LAA will even consider consenting to the legal aid certificate being transferred to the newly appointed firm.

This is not about whether one or either of the parties is at fault here, but whilst there is some logic to the reasoning behind this required process, it does create a litany of problems for the client and the newly appointed law firm.

I just don’t trust my solicitor anymore – the need to make formal complaint

If the relationship is one of a breakdown in trust, the client is expected to lodge a formal complaint to the law firm, who then has to investigate this complaint and attempt resolution. The reality is that once trust has broken down, there is little hope in progressing forward amicably. So we now have a problem. The solicitor, to prevent from opening themselves up to further allegations or complaints, can not realistically continue to act for the client; but until the legal aid certificate is officially transferred, the client in essence is without representation.

Now complaint handling can take days, weeks, months to resolve to the point where the LAA is satisfied to transfer the certificate. If however the LAA feel there are not sufficient grounds to cease representation, the process can take far longer. Reasons for delays are numerous, from insufficient staff to investigate, solicitor is obstructive or that the firm intentionally delays the process for various reasons. The client in the meantime, is unable to have the new solicitor officially go on record unless the new solicitor is prepared to act pro-bono or as a Mackenzie friend whilst the transfer is taking place. If proceedings are ongoing and there has been allotted timescales for reports or hearings, unless there are delays to proceedings, the client is forced to act as an LIP or indeed, file statements etc which many are ill equipped to do.

The implication of delay and the 26 week timetable for care proceedings

Once the law firm has officially signed release of the case and the LAA is satisfied in transferring the legal aid certificate, the new legal team require time to adequately understand the case and prepare their case going forward, that is of course if they already have the case bundles. In many circumstances, the new solicitor has to file reports under the tightest of time frames once the certificate is transferred, with little understanding of the clients case due to existing case management time frames which do not allow for delays within proceedings.
Art 6 is very much at play at this point.

When a complaint is lodged against a solicitor, many firms are reticent to release the bundles until the complaints have been dealt with. Many clients are not even aware they are entitled to their own court bundles and some firms are asking outrageous fees from the clients to make copies of the bundles. In today’s technological age, most firms already have digital copies of the bundles and are able to supply them on a USB drive or other such means. Where clients are either not techno savy or do not have access to computers etc, hard copies of the bundles are requested, which is further delayed when the law firm does not have someone available to copy/print/file them. Some law firms are asking clients for fees to cover the cost of the relevant employees time and cost of materials. I have been asked on numerous occasions to write on behalf of the client, requesting bundles which should have been supplied two or three months prior, and often it has only been supplied once the Legal Ombudsman has been requested to intervene.

Things are even more dire, as recently witnessed by a trainee solicitor I work with. When clients are forced to act as interim LIP’s without support, clients are attending court (unprepared) and are deliberately being informed on arrival that their presence was no longer required, who then subsequently return home on the understanding that the case was being decided on paper. The result is that the client then finds themselves with judgement made against them due to non attendance with the added bonus of costs orders made against them. This concern was noticed relating to various cases within the daily listing and not specific to child matters. This is currently under investigation and I look forward to the outcome.

Now, by the time this entire process is complete and the new law firm can officially go on record, quite a sufficient amount of time has lapsed. This is not only not in the child’s time frame or best interest, but it goes against the very clients position within proceedings, not to mention the added stress to what can only be a very stressful time for them, and especially for clients with learning difficulties. LA’s have also been known to use these procedural delays to discredit the client’s position as being intentionally obstructive.

Whilst most of us are either in the legal field or have some inner knowledge of the workings of this system, it must be remembered that most clients do not and have no idea where to begin when things go wrong. There is currently no means to explain to the layman how to go about processes, what’s expected and what to do if things go wrong.

I hope that helps explain what it is like on ground level and is something that does need sorting. The amount of time consumed and paper generated to an already overwhelmed legal system, not to mention overworked lawyers, can surely be simplified.

Experience of another

Here another parents writes of what happened when she was left as a litigant in person for five months in care proceedings. 

I read the 1989 Children Act and got hold of a second hand law book that dealt specifically with that Act , from which I found out the Local Authority had acted unlawfully. I wrote out what I had found and handed it to the solicitor that had taken over the case, because she dealt with public law children’s proceedings, at the next hearing. She seemed bemused and asked who had written what I had handed to her. She said she would have to find out. She came back to me saying I was right but it would have made no difference. By this time I had done some more reading and believed that the case should have gone to judicial review and I also completely lost faith in the solicitor.

I contacted another firm of solicitors who were happy to take me on , but told me I would have to make a complaint about the original solicitors first. So I did, and was told by them that I had to meet the Senior Partner to resolve the complaint. So I turned up for the meeting, it was February, but the partner was dressed much the way senior politicians do on a factory visit, shirt sleeves rolled up and tie off;man of the people . I am obviously not legally trained, nor a high educated professional but I put my complaint across as best as I could and he dealt with me until I mentioned judicial review … He did not answer my question.

It appeared from his perspective, the complaint had been dealt with satisfactorily, from mine it was outstanding. They basically refused to let me transfer, neither the solicitor nor partner would answer my emails or phone calls, in the end I resorted to using my maiden name to get through.What happened next was even more shocking, the LAA would not transfer the legal aid as they said there was no reason to change solicitors, effectively leaving me without representation. It turned out, eventually that they had told the LAA that I was complaining about the private law proceedings and of course a lack of judicial review would not be relevant, as it is a procedure only used against public authorities.

All this took time and I was eventually a litigant in person for a little short of five months, a time of being petrified ( I am definitely more on the introvert side, so not an aspiring/failed actor) trying to present my own case against a courtroom full of seasoned professionals including of course the top notch Barrister representing the Local Authority. It was only when on the phone to the LAA yet again, that between us, I and the very pleasant lady on the other end of the phone twigged what had happened and it was put right.

So the solicitor got away scot free, even when I reported them to the Legal Ombudsman, who wouldn’t get involved as the dispute did not resolve money, if my memory serves me correctly and I had months of the Local Authority taking full advantage of my lack of legal representation to exploit my naivety.