Exceptional circumstances legal aid: the ‘fig leaf’ of a ‘system which is neither compassionate nor even humane’
Sep 29, 2018, 21:52 PM
family law, legal aid, LASPO, access to justice, General Elections 2015, litigants in person, unrepresented, exceptional circumstances, Legal Aid Agency, LAA
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Exceptional circumstances legal aid: the ‘fig leaf’ of a ‘system which is neither compassionate nor even humane’
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Date :
May 6, 2015, 08:23 AM
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109151
The election and prospect of a new government is upon us and legal
aid has not made it onto the political or media agenda. Yet, in the last month,
there have been stark warnings on the effects of family legal aid cuts from all
corners: the senior judiciary, the parliamentary justice and human rights select
committees, numerous charities, the bar council and law society, and even the
UN committee on the rights of the child.
A particularly blunt declaration came from Mr Justice Mostyn in
MG and JG v JF [2015] EWHC 564 (Fam) at the beginning of March. He was faced with the common situation of litigants
in person in a private law child contact dispute. More unusually, MG and JG
were lesbian partners who were opposing the child’s biological father’s
application for contact. Mostyn J decided that it would be ‘impossible for MG
and JG to be expected to represent themselves having regard to the factual and
legal issues at large’. As such, he ordered that Sch 1 to the Children Act 1989
should be the mechanism by which JF is ordered to cover 80% of MG and JG’s
legal costs, even though there had been no unreasonable conduct by the father.
This is a most unusual move in private children law where the rule is normally
a strict covering of own costs. In his judgment, Mostyn J did not tiptoe
around the injustice of the matter:
‘It could be said that it is grossly unfair that JF should have to
pay now £20,596 … but that is where the government has left him. It is a sorry
state of affairs.’
Before reaching this conclusion, Mostyn J embarked on an analysis of
the ‘safety net’ of s 10(3)(b) of LASPO and highlighted the notoriously
infrequent application of this ‘exceptional circumstances’ provision. It is
intended to give the director of the LAA the discretion to award legal aid
where ‘failure to do so would be … a breach of convention or EU rights’. In
implementing the cuts, the MoJ estimated there would be 5-7,000 applications for
civil legal aid a year under this gateway.
In the year to March 2014 there were just nine children cases deemed
sufficiently ‘exceptional’. Mostyn J recapped cases where the legal aid agency refused
s 10(3)(b) assistance but where senior judiciary subsequently denounced blatant contravention of Art 6
rights. I will focus specifically on the private law instances (the public law
deficiencies warrant their own attention another day).
In
Kinderis v Kineriene [2013] EWHC 4139 (Fam) Holman J found that the mother had a properly
arguable case, with at least a realistic prospect of successfully arguing the
child would be exposed to a risk of harm if returned to Lithuania. He
commented: ‘the mother
is simply incapable of presenting and developing her case properly. She does
not know the complex law. She has to communicate through the interpreter. The
father has all the resources of state-funded lawyers. This is not equality of
arms, as the fair trial provisions of Article 6 of the European Convention on
Human Rights require.’ In this case, the mother’s
legal aid had initially been refused on the merits test. She went on to successfully
resist the return of her child to Lithuania with
pro bono representation in a judgment upheld by the Court of Appeal.
In
D v K and B (By Her
Guardian) [2014] EWHC 700 (Fam), the father’s application for legal aid was
rejected twice, even after HHJ Wildblood QC urged the Legal Aid Agency to reconsider.
The judge declared, ‘If ever there was exceptional private law litigation then
this must be it’. The mother accused the father of rape and was faced with the prospect
of being cross examined by the father in person. It was noted that if the
issues were before a criminal court, the father would be prohibited by statute
from cross-examining the mother himself. The judge stated that it would not be
sufficient for him to ask questions on behalf of the father and the allegations
were so serious that ‘there is a very real prospect that they may prove to be
definitive of the relationship between this child and her Father.’
Re B illustrates the prevalent flip side of the government’s private
children legal aid policy. Legal aid for alleged rapists and domestic abusers
may be an unpalatable political sound bite (and an easy target for
Daily Mail journalists), but the
consequence of no provision is more than uncomfortable. Without representation,
a fair trial can only be salvaged by the respondent cross-examining the
complainant in person, in open court (without any of the ‘special measures’
with which the criminal courts are so accustomed – video links, curtains,
plastic screens, security guards, etc).
The same issue, in even more stark circumstances, was addressed in
January this year by HHJ Bellamy in
Re K and H (Children: Unrepresented Father: Cross-Examination of Child) [2015] EWFC 1. The case concerned disclosures by a child that her father had sexually
abused her. The judge was concerned with two questions: (i) who should
cross-examine the child; and (ii) did he have the power to order HMCTS to pay
for legal representation for the Father for the purposes of the child’s cross
examination? The Lord Chancellor was given permission to intervene.
The judge, in applying the Family Justice Council Guidelines (drawn
up as a result of
Re W [2010]
EWCA Civ 57, [2010] 2 FLR 256), quickly established that the father should not cross-examine the
child in person. But the father was not eligible for ‘exceptional circumstances’
legal aid because
R (on the application of Gudanaviciene & ors) v The Director of legal aid casework and the Lord Chancellor [2014] EWCA Civ 1622 had established that even where there were
Art 6 infringements, the candidate must still satisfy the means and merits
test. This father had roughly £100 per month too much disposable income to
qualify for legal aid but it was established he did not have the resources to
pay for representation.
In defining ‘representation’, HHJ Bellamy turned to s 31(G)(6) of the
Matrimonial Family Proceedings Act 1984, which the President had recently
relied on in
Q v Q; Re B; Re C (Private
Law: Public Funding) [2014] EWFC 31, [2015] 1 FLR 324. He considered that
just as HMCTS are expected to fund provision of bundles for litigants in
person, interpreters and intermediaries, the same applies for the funding of advocates
in exceptional cases. Where a party is unrepresented, the Matrimonial Family
Proceedings Act requires the court to ‘put, or cause to be put, questions to a
witness’. In cases where it is not appropriate for the judge to put such
questions (as in this instance where the issues were ‘grave and/or forensically
complex’), the court must arrange for a representative to put those questions
and the costs be borne by HMCTS. At present, it is unclear if the Lord
Chancellor has appealed this decision.
All of the above are instances where the court has considered the
lack of representation to constitute an infringement of convention rights yet
the respondents have not qualified as appropriately ‘exceptional’ (or have otherwise
failed the means/merits threshold) for the purposes of s 10(3)(b) LASPO. It
is clear these cases represent desperate attempts to 'patch the hole' – whether
through unconventional costs orders against the wealthier party, advocates
acting pro bono, or HMCTS’ own meagre
budget.
One can only hope that repeated warnings on the scarce allowances
for exceptional cases creep into the consciousness of the new justice
secretary (this
article was written on 6 May 2015 – I am being presumptuous in my use of the
word 'new'). Until such a time, the judiciary and legal profession will continue to try and
supplement a ‘fig leaf’ that is far from covering the embarrassment, indeed the
‘inhumanity’, of the legal aid cuts.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
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