A shadow legal aid scheme?

The gradual judicial erosion of government legal aid policy (see also Gudanaviciene and R (PLP) v SSJ) continued today when the President of the Family Division gave his judgment in Q v Q [2014] EWFC 31.

Sir James Munby pointed to the “drastic reduction in the number of represented litigants in private law cases. The number of cases where both parties are represented has fallen very significantly, the number of cases where one party is represented has also fallen significantly and, correspondingly, the number of cases where neither party is represented has risen very significantly”. He set out the facts of Q v Q, and the other cases of Re B (a child) and Re C (a child), giving a single judgment for all three cases.

In Q v Q, a private law case, the father was seeking contact with the child. He is a convicted sex offender, and when expert reports said that he represented a risk to the child, his (pre-LASPO) legal aid was discharged on the merits. The result was that there was no funding:

  • for documents to be translated for the father, who did not speak English;
  • for half of the expert’s fee for attending court (being a jointly commissioned expert, the mother’s legal aid would only cover half the fee)
  • for representation of the father

and the father had no means to pay for it himself.

In Re B, also a contact application, the mother was legally aided but the father was not. It seems (though this is not spelt out in the judgment) that this is because she was eligible for funding despite the LASPO cuts because it was alleged that the child had been raped by the father.

In Re C, the unrepresented father applied for contact (he was represented through the Bar Pro Bono Unit for this hearing). The mother was legally aided, because there was an allegation that he had raped her.

Sir James Munby summarised the issues thus:

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. Each of these problems is, of course, exacerbated if the litigant needs a translator to translate documents and an interpreter to interpret what is going on in court. (para 43)

attendance of experts at court

Sir James Munby held (paras 56 and 57):

If, on the other hand, it is necessary for the expert to attend court to enable the proceedings to be resolved justly – and that must always be a question for determination by the case management judge, not for mere agreement between the parties – then it follows, in my judgment, that the obligation on the State is to provide the necessary funding if a litigant through poverty is unable to pay the cost.

In the final analysis, if there is no other properly available public purse, that cost has, in my judgment to be borne by the court, by HMCTS. It is, after all, the court which, in accordance with FPR 1.1, has imposed on it the duty of dealing with the case justly. And, in the final analysis, it is the court which has the duty of ensuring compliance with Articles 6 and 8 in relation to the proceedings before it.

legal advice

Sir James Munby discussed the problems of an unadvised litigant, particularly one accused of a criminal offence, who risked giving incriminating answers in evidence. But he reached no conclusion in this respect.

representation in court

Sir James Munby noted that s31G(6) Matrimonial and Family Proceedings Act 1984 says:

“Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to –

(a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and

(b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.”

He considered that this placed a duty on the court, and concluded that the guardian or child’s solicitor could not put questions on behalf of another party.

What then is the court to do if the father is unable to pay for his own representation and “exceptional” legal aid is not available?

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. (paras 78 and 79).

three caveats

Sir James Munby stressed that:

  • he was only considering private law family cases. In public law cases, there may be an argument that the local authority should fill the funding gap; he left that for another case.
  • such orders as he was contemplating are orders of last resort and should only be made by, or in consultation with, a High Court or Designated Family Judge.
  • These cases concerned allegations of sexual assault and rape. A similar approach may be appropriate in cases of serious non-sexual assault, and in less serious cases. Everything will depend on the facts of the case.

Subject to outstanding applications for exceptional funding in both cases, Sir James Munby concluded that the second half share of the expert’s attendance in Q v Q, and representation of the father in Re C, would have to be borne by HMCTS.

comment

This is a very significant judgment. The courts, in particular the family courts, have been expressing disquiet at the impacts of LASPO for some time – both on the volume of unrepresented litigants, and the difficulty of doing justice in individual cases where one party is unrepresented but the other is not.

But this is the first time that a court has contemplated funding representation of a litigant directly. The President has created a framework whereby an impecunious litigant whose case is outside the scope of LASPO can nevertheless be represented, funded by the Court. “Legal aid” for those outside the scope of legal aid. Although this judgment is limited to private family law cases with serious allegations made against the unrepresented party, and relies on a family statute to create the duty on the court, there may well be similar arguments to be made in other types of cases – and numerically speaking, family cases are by far the most impacted by LASPO.

Sir James concluded by saying that “the Ministry of Justice, the LAA and HMCTS may wish to consider the implications”. However, it is hard to see what they can immediately do about it. The MoJ were invited to intervene in the case but decided not to do so – the President quoted extensively from the Minister’s letter to him, which in essence said “we’re not prepared to pay for expert evidence or cross-examination so you will have to manage without it”. Sir James chose to do so by requiring HMCTS to pay instead – which means that the MoJ will still ultimately foot the bill. And because it chose not to intervene or apply to be joined, it isn’t a party and so can’t appeal.

 

 

 

 

6 Comments

Filed under Civil, Family, LASPO, Policy

6 responses to “A shadow legal aid scheme?

  1. Many thanks Simon

    Now I think we need to work out exactly what are the court’s powers to order the Govt to pay costs in advance; and how – in an individual case – an applicant applies for costs. I fear most of Sir J’s comments are obiteri and cannot be relied on as law: the issue of state funding, with reply from the Govt, was not before the court.

    • Yes, the case raises a lot of questions both practical and of principle. But that a senior judge is prepared to contemplate the courts stepping in to fill (even if only in limited circumstances) the legal aid gap is a significant development.

  2. Pingback: Exceptional funding in private family law | Legal Aid Handbook

  3. Pingback: Court orders funding for litigant ineligible for legal aid | Legal Aid Handbook

  4. Pingback: “Shadow legal aid scheme” blocked by Court of Appeal | Legal Aid Handbook

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