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By Hugh Logue, Newswatch Editor
The National Youth Advocacy Service is challenging a decision by the Legal Services Commission that would result in them being unable to continue providing representation for children in family courts from 1 February 2012. The charity is now asking Justice Secretary Ken Clarke to overrule the decision of the LSC and is looking to the family law community for support.
The LSC published a tender round for the 2012 family contracts in September 2011. NYAS, as an existing contract holder since 1999, submitted a bid for the new contract on 3 October 2011 seeking 85 new matters and a licence to continue the family court work on behalf of children.
The tender was non competitive and bidders were not required to undertake all categories of family work. NYAS specialise in family work in providing separate representation of children caught in acrimonious family proceedings.
The service was refused a contract for any family work on the grounds that it submitted an incomplete application form as the two office addresses from which they undertake family work were not on the form. NYAS deny this and say they have evidence that the application did contain this information. They immediately appealed the decision but were advised that they have no right of appeal. This means that from 1 February 2012 they can no longer provide separate representation to children in family courts. Consequently children embroiled in protracted and acrimonious proceedings will no longer have access to independent legal representation.
Children in public law proceedings are automatically a party to proceedings and have a CAFCASS guardian. In private law proceedings, children do not automatically have party status unless this is considered to be appropriate by the Judge under Rule 16.4 of the Family Proceedings Rules 2011, having considered the Practice Direction criteria and with regard to the NYAS/CAFCASS protocol which acknowledges those cases where it is appropriate for independent representation and assessment of the best interests of the child. The Practice Direction, coupled with measured judicial consideration of each individual case, ensures appropriate party status. NYAS legal team can then appoint an in-house solicitor for the child and a caseworker to work together in a ‘tandem model', comparable to the model provided as of right in public law proceedings.
NYAS, as a socio-legal charity, has developed expertise in the representation of children for more than 13 years and its work has been praised by judges in several reported family cases. The charity is asking practitioners to write to the Secretary of State and their local MP in support (download the template letters written by NYAS below).
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