While the Government digests the disastrous effects of the Domestic Violence, Crime & Victim’s Act 2004, introduced in July last year, on the protection of the victims of domestic violence, it might also give consideration to another legislative time-bomb affecting family proceedings.

The Family Proceedings Fees Order 2008 increases the cost of issuing care proceedings from a modest £150 to a whopping £2225. Add to this a fee of £700 for an Issue Resolution Hearing and £1900 for a final hearing and we have a grand total of court fees for care proceedings of £4825 if the case goes the full distance.

This is in addition to any other fees on interim applications along the way, including placement orders, which are often sought at the same time. The fee for that is an extra £400.

Such a massive increase in fees has not gone unnoticed by the judiciary. How is it justified? In its Explanatory Memorandum, the Government says that Her Majesty's Courts Service is implementing a strategy, agreed by ministers, to develop and reform the court fee system to ensure that it is “fair and sustainable”.

This is in line with the Government's general intention to make the courts self-financing. On this basis, the strategy is there to ensure that the system meets financial targets for cost recovery and net expenditure; protects access to justice through a well-targeted system of fee concessions for the less well-off; and remains viable when the patterns of demand change by achieving as close a match between the income and costs within the system as reasonably practicable.

The net effect of the proposed increase is an incremental payment system, which means that those cases which are resolved sooner by requiring fewer hearings will pay lower fees. The fees are paid by local authorities, which inevitably means council taxpayers.

However, according to the Explanatory Memorandum, it is not all bad news, as the Government has decided to increase the money it pays to local authorities by some £40 million in order to provide the necessary funding for the court fees.

The Government hopes that the subsidy will be more than enough to meet the expenditure in this regard, especially in the light of the new care protocol, known as the Public Law Outline (“PLO”), which is designed to resolve such matters more quickly and, presumably, more cheaply.

Cynics might say that the increase is designed to dissuade councils from issuing proceedings — and they would not be far wrong. Even the Government admits that the object of the PLO is to discourage “unnecessary and premature use of care proceedings” and that “the proposed fees are designed to support the objectives of these reforms”.

By the same token, the Government rejects suggestions that local councils would be “improperly influenced by financial considerations” and would not always act in the best interests of children.

What has to be borne in mind is that this £40 million is not “ring-fenced” for care proceedings. Indeed, there are some suggestions that local authorities are unable to identify these funds at all, as they do not appear to be identified as such in the block grant paid to them by central government.

Even if the funds are there, it is suggested that central government would then reduce the funding to the court services by an equal amount, so the result would be cost neutral.

If the money does go into a local authority central pot, might it, in any event, go to competing interests? The PLO, far from reducing the workload on social services departments, does in fact require much more up-front intervention in such cases before consideration is given to issuing proceedings. The money may well be absorbed there rather than being used to pay court fees.

It is also not absolutely clear where the figure of £40 million comes from. Is there a mathematical link between the money paid to particular local authorities and the amount of cases brought to court? In any event, it can only be a rough estimate because no one knows with any certainty what effect the PLO will have on the number of new cases that will end up in court.

There is, of course, a more general issue here. Care proceedings involve the local authority taking away children from their parents. In terms of social importance it stands up there with crime, health and education. Why then should it require to be “self-financing”? These are not private family and civil disputes; this is the State versus individuals, with the future of children being at stake. Putting a “price” on that and discouraging local authorities from doing the right thing may not be the best way forward.

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