Those words, a criticism of the removal of legal aid in private law family proceedings, came not from a legal aid lawyer or politician opposed to the cuts. They were said, today, by a High Court Judge. Giving judgment in MG & JG v JF  EWHC 564 (Fam), Mostyn J expressed himself in unusually strong terms about the effect of a lack of legal aid on the litigants in the case before him, and more broadly.
The facts of the case are that a lesbian couple had a child fathered by a donor, who had contact with the child in his early years, until the relationship between the mothers broke down. He issued an application for contact. He is well off, if not wealthy, and the mothers are both relatively impecunious and would have been eligible for legal aid had it been available. Mostyn J considered that the interests of justice required that the mothers be represented and that the only source of funds was the father. He therefore ordered the donor father to pay the bulk of the costs of the proceedings, both his own and that of the mothers. “It could be said that it is grossly unfair that JF should have to pay now £20,596 plus 80% of the future therapeutic costs up to the IRH. But that is where the government has left him. It is a sorry state of affairs.” (para 36).
His remarks in doing so are worth reading in full. We reproduce extracts below.
- On 1 April 2013 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) came into force. It removed legal aid from private law children proceedings save in those exceptional cases where domestic violence is a central feature. In such a case the alleged victim, but not the alleged perpetrator, might receive legal aid. Otherwise, at a stroke, 63 years of state funding of cases such as this was swept away. Had that “reform” not taken place both MG and JG would have been entitled to legal aid, although in JG’s case subject to a contribution, estimated to be £1,004. With the state washing its hands of MG and JG they now look to JF to fund their representation.
- Had MG and JG been in receipt of legal aid, or had they been of means and able to pay for their representation from their own funds without hardship, it is inconceivable that JF would be ordered to pay their costs. In the decision of the Supreme Court of Re T (Children)  UKSC 36,  1 WLR 2281 it was confirmed that orders for costs in children cases would only be made where reprehensible behaviour or an unreasonable stance was proved against the respondent (see paras 4, 14 and 44). It cannot be said that JF is guilty of such conduct here.
- In this case it is my firm view that it is impossible for MG and JG to be expected to represent themselves having regard to the factual and legal issues at large. There would be a gross inequality of arms, and arguably a violation of their rights under Articles 6 and 8 of the European Convention on Human Rights and Article 47 of the European Charter of Fundamental Rights. So even though it cannot be said that JF has behaved reprehensibly or unreasonably he is the only realistic source of costs funding, subject to whatever contribution MG and JG should make from their own very limited resources. Some may say (and have said) that this is grossly unjust; I myself refrain from comment.
- Civil legal aid for private law children proceedings was introduced by the Legal Aid and Advice Act 1949, subject to means testing. The Act was the product of the deliberations of Lord Rushcliffe’s committee in 1945. It was part of the rolling out of the welfare state by the post-war Attlee government. It has rightly been described as the fourth pillar of the welfare state, the others being health, education and social security. Initially over 80% of the population satisfied the means test; this fell progressively so that by 2007 only 27% did. The right to legal aid in private law family proceedings was preserved in the Legal Aid Act 1988 and in the Access to Justice Act 1999. In 2005 the state funded about 45,000 such cases at a cost of about £130m.
- As the President explained in Q v Q the number of annual cases where the safety net has been applied can be counted on the fingers of two hands. In the year to March 2014 there were 9. Indeed between December 2013 and March 2014 one solitary case was caught by the safety net. The President stated at para 14 “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.” Thus it would be perfectly reasonable to describe this “safety net” as a fig leaf. MG and JG have not applied for exceptional funding under section 10(3)(b), no doubt taking the realistic view that any such application would be rejected summarily.
- Since the reforms have taken effect there have been an appreciable number of cases which have demonstrated that the blithe assumption in the consultation paper (that the parties’ emotional involvement in the case will not necessarily mean that they are unable to present it themselves, and that there is no reason to believe that such cases will be routinely legally complex) is unfounded. This was entirely predictable. The cases are Kinderis v Kineriene  EWHC 4139 (Fam) (18 December 2013, Holman J); Re B (a child) (private law fact finding – unrepresented father)  EWHC 700 (Fam) (27 January 2014, Judge Wildblood QC); Q v Q  EWFC 7 (21 May 2014, the President); Q v Q (No. 2)  EWFC 31 (6 August 2014, the President); Re H  EWFC B127 (14 August 2014, Judge Hallam); Re D (A Child)  EWFC 39 (31 October 2014, the President); CD v ED  EWFC B153 (14 November 2014, Judge Hudson); Re D (A Child) (No. 2)  EWFC 2 (7 January 2015, the President); and Re K & H (Children: Unrepresented Father: Cross-Examination of Child)  EWFC 1 (5 January 2015, Judge Bellamy). This is a formidable catalogue. Each case focussed on the gross unfairness meted out to a parent in private law proceedings by the denial of legal aid. I do not think it would be right to say that these were examples of the operation of the law of unintended consequences since, as I say, the problems were so entirely predictable.
- Also of relevance is JG v The Lord Chancellor & Ors  EWCA Civ 656 (21 May 2014) where the Court of Appeal held that the refusal of the (then) Legal Services Commission (LSC) to meet the cost of an expert report was unlawful. A district judge had ordered that the legally aided child, who was a party to the proceedings, should pay for that report. The order recorded that “the cost of the report to be funded by the child, the court considering it to be a reasonable and necessary disbursement to be incurred under the terms of her public funding certificate.” In the face of a dogged refusal to comply with this order by the LSC the district judge later ordered that:
“The cost[s] of the expert to be funded by the child the court considering them to be a reasonable and necessary disbursement under her certificate and the purpose of the report is solely to establish what arrangements are in her best interests. Furthermore, the court has carried out a means assessment of both parents and found that they are unable to afford any part of these fees. In reaching this conclusion the court considered the provisions of section 22(4) of the Access to Justice Act 1999.”
Notwithstanding this ruling the Legal Aid Agency (as the LSC had become) persisted in its refusal, and judicial review proceedings had to be commenced. The Legal Aid Agency actually succeeded at first instance but in the Court of Appeal, despite elaborate and trenchant argument by it and by the Lord Chancellor, who had intervened, its decision to refuse to comply with the order and to fund the report was held to be unlawful.
- In Lindner v Rawlins  EWCA Civ 61 the Court of Appeal heard an appeal by an unrepresented husband against a refusal to order police disclosure in defended divorce proceedings. The wife was neither present nor represented. Aikens LJ observed that the appeal was technical and unusual and that the husband could not be expected to have mastered this area of the law in order to be able to present his appeal in a way that assisted the court. He bemoaned the lack of the legal assistance of counsel that the court should have.
- I need only cite a few of the judicial observations. In Kinderis v Kineriene Holman J described the position in which the unrepresented mother in Hague proceedings found herself as follows:
“The present procedure operates in a way which is unjust, contrary to the welfare of particularly vulnerable children at a time of great upheaval in their lives, incompatible with the obligations of this state under Article 11(3) of the [B2R] regulation, and ultimately counter-productive in that it merely wastes taxpayers’ funds”
In Re H Judge Hallam was dealing with an unrepresented mother with speech, hearing and learning difficulties. An official of the Legal Aid Agency stated that there would be no breach of convention rights were she to remain unfunded. Judge Hallam stated “I find that statement astounding”. In Re D the unrepresented father, who lacked capacity, had made an application to revoke a care order; the local authority had applied for a placement (for adoption) order. After heavy pressure from the President some legal aid was eventually awarded. At para 31(vi) of his first judgment the President stated:
“Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that the State is not in breach of the State’s – the United Kingdom’s – obligations under the Convention?”
At para 21 of his second judgment he stated that “the parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane.”
- In Lindner v Rawlins at para 34 Aikens LJ stated:
“Yet again, the court was without any legal assistance and had to spend time researching the law for itself then attempting to apply it to the relevant facts in order to arrive at the correct legal answer. To do the latter exercise meant that the court itself had to trawl through a large amount of documents in the file. All this involves an expensive use of judicial time, which is in short supply as it is. Money may have been saved from the legal aid funds, but an equal amount of expense, if not more, has been incurred in terms of the costs of judges’ and court time. The result is that there is, in fact, no economy at all. Worse, this way of dealing with cases runs the risk that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it.”
- These are powerful criticisms. The President suggested that if the Legal Aid Agency would not award legal aid to an unrepresented parent facing serious allegations then the court might have to do so from its own budget. In Re K & H that was the course proposed. The Lord Chancellor instructed leading counsel who bravely argued that the President’s analysis of the existence of this power was “plainly wrong”. Judge Bellamy disagreed and awarded representation from the court budget. The Lord Chancellor is appealing that decision. It can safely be assumed that the criticisms I have recounted have fallen on deaf ears. Based on the decisions I have cited, including no fewer than four from the President himself, it can be said that in the field of private children law the principle of individual justice has had to be sacrificed on the altar of the public debt. And based on the observation of Aikens LJ, it can reasonably be predicted that the phenomenon of the massive increase in self-representation will give rise to the serious risk of the court reaching incorrect, and therefore unjust, decisions.