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Scope
7.32A representation certificate in family public law can only be granted when the local authority issues proceedings, and is therefore usually granted initially as an emergency certificate using delegated functions. It authorises the conduct of litigation and the provision of advocacy and representation.
Certificates
7.33An application for funding in special Children Act cases is granted automatically, without reference to means or merits. An application to extend the scope of the certificate to cover related proceedings (for example, to make an application for a residence or contact order within the care proceedings, or to include representation in any other related proceedings which are being heard together) must be made, as the usual form of the certificate only covers proceedings under Children Act 1989 ss31, 43, 44 and 45, and applications from a child under section 27.
7.34Apart from ‘related proceedings’, certificates in this area are kept completely separate from all other work. Therefore, a separate application must always be made – an ordinary certificate cannot be amended to cover special Children Act proceedings, and a special Children Act certificate cannot be amended to cover anything else.
7.35The application includes a question on whether separate representation is appropriate. Once funding has been granted, you have an ongoing duty to report any new information or changes of circumstance which might affect the terms of the certificate.
1Civil Legal Aid (Procedure) Regulations 2012 reg 40(1)(a).Financial eligibility
7.36Certificates in special Children Act proceedings are not means tested. Certificates in other public law Children cases are means tested, including interim care orders under section 38 of the Children Act 1989.
2Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 Pt 2 reg 5.7.37See chapter 3 for information about the means test.
Merits test
7.38Certificates in special Children Act proceedings are not merits tested.
7.39Certificates in other public law children cases are subject to a limited merits test:
3Civil Legal Aid (Merits Criteria) Regulations 2013 reg 66, amended by Civil Legal Aid (Merits Criteria) (Amendment) (No 2) Regulations 2015 reg 2(7) and Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 reg 2(9).•representation will be refused if:
•alternative funding is available (eg in adoption, where the child is placed by the local authority who consent to the adoption, it would be reasonable to expect them to bear the costs of the application);
•not necessary (for example, because of the involvement of other parties or a professional guardian);
•it is unreasonable to provide representation, having regard to the importance of the case to the applicant; and
•if the applicant is making or supporting an appeal or application, the prospects of success of that appeal or application are:
•marginal or better; or borderline.
CCMS and forms
7.40As mentioned in chapter 5, the LAA introduced mandatory use of its online Client and Cost Management System (CCMS) for all new applications from April 2016. CCMS replaces the paper forms explained below.
7.41See para 5.115 above for more information about:
•what to do if CCMS is not available;
•claiming time spent on CCMS that exceeds time taken using a paper form.
If you need to use a paper form, you use CIVAPP5 for special Children Act proceedings and CIVAPP3 in other cases.
7.42Apart from ‘related proceedings’, special Children Act certificates are kept completely separate from all other work. Therefore, a separate application must always be made – an ordinary certificate cannot be amended to cover special Children Act proceedings, and a special Children Act certificate cannot be amended to cover anything else.
Funding
7.43Representation in respect of a child, parent or joined party in care and supervision proceedings (Children Act 1989 s31) and related proceedings
4Standard Civil Contract Specification 2013 para 7.33. is covered by a standard fee scheme. The fees are based on the location of the solicitor’s office and the nature and number of parties represented.
7.44Fees refer to the LAA region where the fee earner was based during the case:
•Wales;
•London, Brighton, Reading and Bristol – all claim the ‘London and South’ fee;
•Birmingham, Nottingham and Cambridge – all claim the ‘Midlands’ fee;
•Newcastle, Leeds, Liverpool and Manchester – all claim the ‘North’ fee.
7.45The standard fee scheme does not apply to other ‘special Children Act proceedings’, ie under section 25 (when a child is brought before the court and wishes to be separately represented), section 43 (a child assessment order), section 44 (an emergency protection order) and section 45 (extension or discharge of an emergency protection order).
7.46It does not apply to other public law family proceedings, including appeals in special Children Act cases, and proceedings under Parts IV and V of the Children Act, as well as adoption and High Court inherent jurisdiction cases.
5Standard Civil Contract Specification 2013 para 7.34.7.47In Children Act 1989 s31 cases, funding under the Graduated Fee Scheme for legal representation certificates covers all stages up to the conclusion of the proceedings in the first instance (including representation on any interim appeal and/or advice on the merits of an appeal against a final order). Where legal representation is granted to defend or bring an appeal against a final order, it is paid by way of hourly rates.
6Standard Civil Contract Specification 2013 para 7.51.7.48Other public law family certificated cases are funded under hourly rates; but see below concerning very high cost cases and the Care Cases Fee Scheme.
7.49The rates were reduced by 10 per cent for cases started on or after 22 April 2014, and so the current hourly rates and fees are set out in the Civil Legal Aid (Remuneration) (Amendment) (No 2) Regulations 2014.
Advocacy under standard fees
7.50The standard fees do not include advocacy. Where advocacy is provided, whether by counsel or a solicitor advocate, the claim is made under the Family Advocacy Scheme (FAS), which applies to cases where the certificate was granted following an application made on or after 9 May 2011 (see chapter 16 for more information).
7.51The LAA include the following activities under the definition of advocacy for the purposes of the FAS preparation for advocacy:
•appearances as advocate before the court;
•travel to and from court and waiting time;
•attendances by the advocate at court, including attendance at advocates meetings.
7.52If you are a solicitor carrying out advocacy, it is helpful to keep a separate file for this aspect of the case as it helps you keep track of the advocacy fees to be charged on top of the applicable standard fee for other work. It also helps you identify when to apply for an increase in the financial limitation on the certificate as this includes all profit costs as well as disbursements, advocacy fees and VAT.
Applying for a certificate – urgent cases
7.53Unless otherwise notified, under paragraph 7.41 of the Standard Civil Contract Specification 2013 you have a delegated function to grant legal representation in special Children Act cases. The CIVAPP5 should be completed and in addition, the delegated functions section on page 5 of that form must be completed, stating the date on which the delegated function was exercised and confirming that the criterion as to separate representation is met.
7.54See chapter 5 for more information about delegated functions, and also about:
•amendments to certificates;
•refusals and appeals;
•use of counsel and amendments for a QC;
•changes to prospects of success or cost-benefit;
•disbursements and prior authority;
•contributions;
•high-cost cases;
•ending a case;
•discharge of certificate;
•revocation of certificate.
Very High Cost Cases – VHCCs
7.55A VHCC is a case where total costs and disbursements are expected to be over £25K (not including VAT). Most of these cases are dealt with under a single case contract under the Care Case Fee Scheme – CCFS.
Care Case Fee Scheme (CCFS)
7.56The LAA introduced the CCFS from 1 October 2015 (it was previously known as the ‘Events Model’). It covers all single counsel care cases. Payment is made by reference to expected ‘events’ during the lifetime of the case. Examples of ‘events’ include the number of hearings, pre-hearing reviews and counsel conferences. Costs are calculated by totalling up these ‘events’.
7.57Some private law and other child cases, which follow a similar fact-finding route and have main hearings over 10 days, may qualify for the CCFS scheme (on request and agreed by the Legal Aid Agency).
Exceptions to the CCFS
7.58Two counsel care VHCCs are not dealt with under the CCFS.
7.59If you can show you would be paid at least 30 per cent more by claiming hourly rates with a fully costed case plan rather than using the CCFS model, it can be an exception to the CCFS scheme. This needs to be fully justified with reasons.
7.60See chapter 13 for more information about the CCFS and VHCCs.