Family Law

The bare facts in two of these three cases (Re B and Re C) are strikingly similar, but they are no doubt not unique. There will be other cases with different facts but involving equally grave allegations and complex issues, and which require a forensic approach and an understanding of the potentially significant legal consequences of the court’s determination of such allegations within family proceedings – significant both for a parent found responsible of gravely abusive and potentially criminal conduct or for a parent found to have fabricated such allegations. In either instance there is potential for far reaching ramifications – perhaps an effective termination of a direct relationship with a child or a change of residence – and beyond the specific dispute about this child, child protection concerns may impact on the care of other children by that adult, or criminal proceedings may follow.

Notwithstanding the scrutiny by Parliament of the provisions of LASPO 2012 (including s 10 – exceptional funding) there are private law cases of real difficulty and complexity that require legal expertise to navigate fairly and effectively. In the writers' view whilst such cases are not typical, neither are they exceptional. And as highlighted in Re W (Residence Order: Appeal) [2014] EWCA Civ 1065, [2014] 2 FLR (forthcoming) there are concerns in some quarters that care proceedings 'by the back door' may be becoming more prevalent in places. Surely such cases (along with any true private law cases that involve potential severing of a parent child relationship) are as meritorious of legal representation as the care cases in respect of which parents benefit from non-means non-merits tested public funding. It is after all plain that the rigorous 'last resort' approach set out in Re B is applicable to such cases, and that the duty of the court as public authority to ensure that Arts 6 and 8 are respected is engaged.

Because of course whilst the scope of legal aid has been intentionally narrowed by Parliament, the court remains under as much of a duty as ever to afford a fair trial to litigants. In addition Parliament legislated for the creation of the Family Court on 22 April 2014. One of the amendments to the Matrimonial and Family Proceedings Act 1984 that formed the raft of provisions creating the Family Court was the inclusion of a new s 31G. That provision specifically creates a duty upon the court to 'put or cause to be put' questions where a witness is unable to do so. It must be taken to have been Parliament’s specific intention to create this new and very specific obligation.

In the first judgment in Q v Q (Q v Q [2014] EWFC 7), in the course of grappling with a similar difficulty with how to achieve a fair trial in the absence of public funding for a father who was facing the potential termination of his relationship with a child, the President had mooted various scenarios that might enable the case to fairly proceed. One of the scenarios was the 'Some other pocket [of the state] must pay' scenario. Neither the Minister nor the LAA took up the invitation to engage in that discussion and so in the conjoined judgment in Q v Q the President was left to answer his own questions without their input. Ultimately he concluded, whatever arrangements had been made for the provision of legal aid, the court remained under a duty to afford a fair trial, and (to adopt the language of Re B) as an option of last resort there may some cases where the court itself would have to pay.

It remains to be seen if this ever comes to pass, and if it does how often recourse will be needed to the 'HMCTS emergency representation fund' (or whatever it may be called). It remains to be seen how such a scheme would operate, although it seems likely that the civil servants at HMCTS would require it to be set up so as to be properly auditable just as with the LAA. It may be that the father in Re C secures public funding and the issue falls away in this case (his application was pending when judgment was handed down) – but there are likely to be other cases in which there are similar difficulties and where the question of HMCTS providing financial assistance might be raised. Much depends upon the progress and outcome of the various judicial reviews and appeals relating to s 10 LASPO 2012 'exceptional funding' that are in progress or pending (for example Gudanaviciene & Ors v Director of Legal Aid Casework & Anor [2014] EWHC 1840 (Admin) is on appeal) – if exceptional funding begins to be granted more readily, perhaps as a result of the Lord Chancellor’s Guidance on s 10 being revised, the court coffers may not be called upon.

It appears though that the sorts of cases where this issue may arise for determination are these:

• Cases where there is a prospect of a decision that will effectively terminate the relationship between a parent and child ('no contact' cases), and / or where there are grave allegations that would raise the prospect of future criminal proceedings if proven (or for the person making the allegation if found to be false?), and possibly where the court is determining whether to remove / return a child from / to the care of its’ parents (so-called 'back door care' cases).
• Where the case does not qualify for exceptional funding (for example where the parent falls foul of the means test but is nonetheless too impecunious to fund representation) or where exceptional funding has been applied for and refused (but will a parent have to apply repeatedly, pursue JR first etc?).
• Where other avenues have been tried and failed (Bar Pro Bono Unit etc).

The judgment in Q v Q represents the court’s attempt to find ways to comply with the statutory obligations imposed upon it by Parliament using such resources as are available to it. Sadly, the 'solution' of 'court must pay' is only partial, and less than ideal. It will leave parties and children expending a great deal of emotional energy and time on working through and exhausting all options in a protracted preliminary process – before the court can get on with the substance of an application and make decisions for children.

Private law proceedings are stressful for all involved, more so when grave allegations are made. In each such case there is a victim – either a victim of abuse or violence or a victim of a false or exaggerated allegation. Whatever the truth in the particular case the delay and uncertainty caused by the lack of representation of one party is not only stressful and traumatic, but it is wasteful of public resources through unnecessary hearings (including ironically additional legal aid costs where the alleged victim is represented) and is forensically deleterious because evidence becomes stale, memory fades and vulnerable witnesses become exhausted by the process. A child is left in limbo. In Re B and Re C proceedings have been running for many months, the parents have been to court on many occasions and subjected to no doubt distressing uncertainty - but to date the court has not been able to begin dealing with the substance of their cases. As yet there is no solution in place that will prevent other families going through similar delay before their cases can be said to qualify for funding under Q v Q and are subsequently ready to proceed.

---

Judi Evans represented the father in Re B, and Lucy Reed represented the mothers in both Re B and Re C. Both are members of the family team at St John’s Chambers in Bristol.

Lucy has been shortlisted for the 2014 Family Law Awards - Commentator of the Year. Voting for this award is open to the Family Law community, to place your vote for the award click here.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.