The first two reported cases of the year in the Family Court are both concerned with the difficulties litigants – not to mention practitioners, and the courts – are now faced with when trying to navigate the legal aid system. The first – about which we posted here – concerned an unrepresented father who couldn’t get legal aid despite needing to cross-examine a child who had accused him of abuse, leading to the court to order that he be funded outside the legal aid scheme.
The second case, D (A Child) (No 2)  EWFC 2, chronicles the attempts of a couple faced with the adoption of their children to obtain legal aid. The Annex to the judgment, which is simply a chronology of those attempts, is more than twice as long as the judgment itself. Giving judgment, the President, Sir James Munby said (para 11):
- I make only the following observations:
i) It took from 20 March 2014 until 1 December 2014 for the parents’ legal aid applications to proceed to the point where the necessary certificates were granted. Although the LAA had indicated by the letters dated 8 October 2014 that legal aid would be made available for the ongoing proceedings, it took the best part of another two months for all the formalities to be concluded.
ii) D was removed from his parents on 25 April 2014 (see Re D, para 6). Because of the ongoing delays in obtaining legal aid, the final hearing will not take place until 9 February 2015. Even allowing for the delay until 17 July 2014 resulting from the hearings before Baker J, Her Honour Judge Marshall and Black LJ (see Re D, para 7), the further delays since then are unconscionable. Whatever the administrative excuses, the human reality is that a little boy has been separated from his parents pending a final decision for far too long – and for a period which is manifestly excessive not least bearing in mind, if only by way of analogy, the 26-week period now mandated by section 32(1) of the Children Act 1989 as amended by the Children and Families Act 2014. The delay, as Ms Deirdre Fottrell and Ms Marlene Cayoun, acting for the father, pointed out at the hearing on 13 November 2014, and again on 2 December 2014, itself raises issues – and, I would add, not merely for their client, D’s father, but also for D himself – in relation to both Article 6 and Article 8 of the Convention.
iii) The complexity of the process involved in obtaining legal aid for D’s parents is, quite manifestly, beyond their capabilities. Given their limitations it is perfectly obvious that if they were to obtain the legal aid which was – eventually – granted, they would need professional assistance. It is no thanks to the system that they were able to avail themselves of that assistance; it was, as I have already had occasion to point out (see Re D, paras 20, 31) available to them only because of the goodwill, the charity, of the legal profession which, in the person of Ms Stevens of WK (and in singling her out I do not forget everyone else who has acted here pro bono), has shown devotion to the client far above and far beyond the call of duty. This state of affairs is, to repeat (Re D, para 31(vi)), both unprincipled and unconscionable. As Ms Fottrell aptly observed, for any parent who lacks capacity the application process itself functions as a barrier to access to public funding which, in the context of a placement application, involves a potential breach of Article 6. And if the ALC’s observations are well-founded, there must be many parents with difficulties similar to those of D’s parents.
iv) One of the aspects of the system which seems to have contributed significantly to the delays was that although, for good reason, both of D’s parents required legal aid, the grant of legal aid to D’s mother, who has no income or money of her own, was dependent on her making financial contributions that were assessed on her husband’s income and necessarily had to be funded by him – something which he, as a person under disability, could not himself agree to. So, the mother’s ability to avail herself of legal aid was entirely dependent on the decisions of third parties – SBC and the Panel – over whom she had and has no control.
- It will be noticed that there is, as yet, no assurance that legal aid will be in place for the final hearing. This causes me some disquiet. Whatever view may be taken as to their prospects of success at the final hearing, a matter on which I express no views whatever, though recognising, as I have earlier noted (Re D, para 9), that the report of the independent social worker is unfavourable to the parents, I would view with the very gravest concern any suggestion that they should be denied legal aid on ‘merits’ grounds. Given the extreme gravity of the issues at stake and their various problems and difficulties, it is, as I said before (Re D, paras 3, 31), unthinkable that the parents should have to face the local authority’s application without proper representation. I repeat what I said in my earlier judgment:
“To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.”
A parent facing the permanent removal of their child must be entitled to put their case to the court, however seemingly forlorn, and that must surely be as much the right of a parent with learning disabilities (as in the case of the mother) or a parent who lacks capacity (as in the case of the father) as of any other parent. It is one of the oldest principles of our law – it goes back over 400 centuries to the earliest years of the seventeenth century – that no-one is to be condemned unheard. I trust that all involved will bear this in mind.
- This is a case about three human beings. It is a case which raises the most profound issues for each of these three people. The outcome will affect each of them for the rest of their lives. Even those of us who spend our lives in the family courts can have but a dim awareness of the agony these parents must be going through as they wait, and wait, and wait, and wait, to learn whether or not their child is to be returned to them. Yet for much of the time since their son was taken from them – for far too much of that time – the focus of the proceedings has had to be on the issue of funding, which has indeed been the primary focus of the last three hearings. The parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane.
- I leave the last word to the mother, who, together with her husband, was present at the hearing on 2 December 2014 as at previous hearings. In an up-dating note dated 8 December 2014, her counsel, Ms Sarah Morgan QC and Ms Lucy Sprinz, said this:
“The mother was distressed following the last hearing that the child had not, as far as she had heard it, even been mentioned during the course of the submissions and discussions between Counsel (including her own) and the Court. It doesn’t, she remarked afterwards, seem right that so much time has to be taken up about the legal aid when it should be about D.”
They added, “Clearly she is right about that.” For my own part I merely pose this question: Is this really the best we can do?
Neither this case nor K & H are cases directly affected by LASPO. In K & H, the issue was that the father was ineligible on means (though he was also out of scope, but his financial position meant that even exceptional funding was closed off to him). In D, the type of case was in scope (unchanged by LASPO) but subject to means – and the parents struggled for nine months to prove their means to the satisfaction of the LAA (and their lawyers worked for free in the meantime).
Almost any civil practitioner, not just those working in family, will recognise the struggles with the LAA spelt out in the annex to the judgment – this might be an extreme case, but it is an extreme version of a situation practitioners confront every day. There must be controls over the expenditure of public funds but when those controls – and the attitudes with which they are applied – have effects such as this the balance has tipped too far . As Munby P said, and it could be said about many other cases, “this is a case about three human beings. It is a case which raises the most profound issues for each of these three people…Is this really the best we can do?”