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.’