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President challenges government over legal aid

Date:7 AUG 2014
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Journals Manager + Online Editor
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.

In  Q v Q; Re B; Re C [2014] EWFC 31, [2014] 2 FLR (forthcoming), Sir James Munby was dealing with three unrelated private law cases, 'in which a father is seeking to play a role in the life of his child, who lives with the mother. In each of the three cases the President was confronted with the same issue, namely, the mother having access to public funding while the father did not. 

He notes that in part these problems pre-date the implementation of LASPO; however, also recognises that these problems have 'been very considerably exacerbated by LASPO'.

The President asked what the court is supposed to do when a litigant is unable to afford representation and exceptional funding is not available. He made reference to  legal aid exceptional case funding statistics which showed that only eight cases had qualified as 'exceptional' in the period covering 31 March 2013 to 1 April 2014.

 'Views may differ as to whether the “exceptional” funding scheme is working effectively, a matter on which I express no opinion. If the scheme is indeed working effectively, then it might be thought that the scheme is inadequate, for the proper demand is surely at a level very significantly greater than 8 or 9 cases a year.' (para [14])
He continued:

'The absence of public funding for those too impoverished to pay for their own representation potentially creates at least three major problems: first, the denial of legal advice and of assistance in drafting documents; second, and most obvious, the denial of professional advocacy in the court room; third, the denial of the ability to bring to court a professional witness whose fees for attending are beyond the ability of the litigant to pay.' (para [43])
Citing Art 6 and the right to a fair trial, Sir James Munby said:  

 'Article 6 guarantees the right of “practical” and “effective” access to the court. In the case of a litigant in person, the question is whether, without the assistance of a lawyer, the litigant will be “able to present her case properly and satisfactorily”: Airey v Ireland (Application no 6289/73) (1979) 2 EHRR 305, para 24.' (para [48])
The President, arguably, submits a direct challenge to the government when at para [79] he says:

'In the ultimate analysis, if the criteria in section 31G(6) are satisfied, and if the judge is satisfied that the essential requirements of a fair trial as required by FPR 1.1 and Articles 6 and 8 cannot otherwise be met, the effect of the words “cause to be put” in section 31G(6) is, in my judgment, to enable the judge to direct that appropriate representation is to be provided by – at the expense of – the court, that is, at the expense of HMCTS.'
He continued by setting out three caveats to his judgment:

  • 'In this judgment I have been concerned only to consider the problems that may arise in private law cases. I have therefore not had occasion to consider any further the point I made in Q v Q (para 18), where I suggested that “In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay.” That is a matter for another day.' (para [89])
  • 'I have concluded that there may be circumstances in which the court can properly direct that the cost of certain activities should be borne by HMCTS. I emphasise that (the provision of interpreters and translators apart) this is an order of last resort. No order of this sort should be made except by or having first consulted a High Court Judge or a Designated Family Judge.' (para [90])
  • 'I emphasise also that the allegation in each case is one of sexual assault, in two of the cases an allegation of rape. It may be that a similar approach is appropriate in cases of serious non-sexual assault. It may be that it will not be appropriate in less serious cases. I express no concluded views, beyond drawing attention to the trite observation that everything will, in the final analysis, depend upon the particular facts of the specific case.'  

In his concluding remarks he says, 'The Ministry of Justice, the LAA and HMCTS may wish to consider the implications. That is a matter for them.' 

Speaking to the  Law Gazette, the Law Society’s head of family and social justice Mark Poulson said:

‘The judgment’s significance is as a signal to policymakers. It says that in private law Children Act proceedings where exceptional funding is not granted, and interpreters or experts deemed necessary to resolve proceedings justly are put out of the court’s reach; or Article 6 and 8 rights are put at risk because legal representation is not funded by the LAA - for example, where an alleged perpetrator is set to cross-examine an alleged victim - then the court will consider ordering costs against HMCTS, on the basis that some part of the public purse has to meet the state’s obligations. This is really an exhortation to the MoJ and LAA to sort things out before matters reach that stage.’

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