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Munby, legal aid, agency, Q v Q,  EWFC 31, justice, LASPO, unrepresented litigants in person, exceptional funding
Sir James Munby, President of the Family Division, has ruled that the Court would be entitled, under Article 6 of the European Convention, to order HMCTS to pay for legal representation should the Legal Aid Agency refuse to grant exceptional funding under section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Meta Title :Q v Q; Re B; Re C  EWFC 31
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Aug 6, 2014, 06:00 AM
Article ID :116653
(Family Court, Sir James Munby, the President of the Family Division, 6 August 2014)
[The judicially approved judgment and accompanying headnote has now published in Family Law Reports  1 FLR 324]
Funding – Private law children proceedings – Fathers unable to fund representation – Complex issues including allegations of rape – Whether the costs of representation could be met by HMCTS
Three unrelated were heard together to determine issues of legal aid funding. All three cases were private law proceedings in which the father was seeking contact with the child living with the mother. The mother in each case had funding but the father did not. The general effect of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was that public funding was not available for private law children cases.
In the cases of Re B and Re C there were further complications arising from the fact that the father was accused of rape and was awaiting trial. The result was that the father needed access to legal advice on related complex legal matters. It fell to be determined whether the cost of necessary representation and expert evidence should be met by the HMCTS.
An expert could only be instructed pursuant to s 13(6) of the Children and Families Act 2014 if it was necessary to assist the court to resolve proceedings justly. It followed that the obligation fell on the State to provide the necessary funding if a litigant was unable to meet the costs. If there was no other properly available public purse then that cost had to be borne by the HMCTS. FPR 1.1 imposed the duty on the court of dealing with cases justly and it was the duty of the court to ensure compliance with Arts 6 and 8 of the European Convention on Human Rights.
In this instance the fathers desperately needed access to skilled legal advice and if the judge was deprived of adversarial argument and if the father was denied access to legal advice there was a very real risk of the father’s European Convention rights being breached.
In certain circumstances the court could direct the cost of certain activities to be met by HMCTS but it would only be an order of last report. No order of that sort should be made except by or having first consulted a High Court judge or a designated family judge.
The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.
IN THE FAMILY COURT Royal Courts of Justice Strand London WC2A 2LL
Date: 6 August 2014
Before : SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION - - - - - - - - - - - - - - - - - - - - - Q v Q Re B (A Child) Re C (A Child) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Judith Spooner (instructed by Hodge, Jones and Allen) for the mother in Q v Q The father in Q v Q appeared in person Ms Judi Evans (instructed by Kelcey and Hall) for the father in Re B Ms Lucy Reed (instructed by Battrick Clark) for the mother in Re B Mr Richard Ellis (of Withy King) for the child in Re B Ms Janet Bazley QC and Mr Julien Foster (appearing pro bono instructed by the Bar Pro Bono Unit) for the father in Re C Ms Lucy Reed (instructed by Battrick Clark) for the mother in Re C Mr Stuart Fuller (instructed by local authority solicitor) for the local authority in Re C Ms Donna Cummins (of Lyons Davidson) for the child in Re C
Hearing dates: 21 May 2014 (Q v Q); 7 July 2014 (Re B and Re C) - - - - - - - - - - - - - - - - - - - - -
Approved Judgment I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. .............................