Exceptional funding in private family law

A few months ago, we reported the judgment of Sir James Munby P in the cases of Q v Q, Re B and Re C. In Re C, a private law case, the father was accused of raping the mother. His representation in the private family law proceedings was not within the scope of the legal aid scheme – even though it would result in the possibility of him cross-examining the mother (the alleged victim of his rape) in person. Munby P set out his view that it may be necessary in some cases, where legal aid was not available, for other means of funding representation to be made available, even if that meant it being paid for out of the court service budget. But he didn’t make such a direction, because the father had an outstanding application for exceptional funding.

In a new judgment handed down last week, (Re C (A Child) (No 2) [2014] EWFC 44) Munby P gave an update. Following his intervention (and despite earlier difficulties), the LAA have now granted the father exceptional funding, subject to a contribution. He therefore did not need to direct that the father’s representation be funded from another source. But he took the unusual step of appending to his judgment the written submissions of counsel for the mother, Lucy Reed, arguing that her client could not have a fair trial, and her Article 6 rights would be breached, if representation was not granted to the father. The ongoing delay, caused by delays in considering the father’s application, was also in breach of her (and the child’s) Article 8 rights. It was also said that subjecting her to cross-examination by the father would of itself be inhuman or degrading treatment in breach of Article 3. While it was now academic in this case, and so Munby P made no decision, it is useful to see the arguments that were put.

Finally, Munby P thanked the various lawyers who had appeared pro bono in the case at different times. But as he said, quoting himself in an earlier case, “It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.”

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Filed under Civil, Family, LASPO

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