In what we called the development of a “shadow legal aid scheme”, the President of the Family Division, Sir James Munby, said in Q v Q that in certain circumstances the Court could order that a party not eligible for legal aid be funded by HMCTS. In the first use of that power, HHJ Bellamy, in K & H, ordered that representation of a father be funded where serious allegations had been made against him and where he would otherwise have to cross-examine in person the child who made the allegations.
The Lord Chancellor appealed that decision, and the Court of Appeal has today given judgment – Re K & H (Children)  EWCA Civ 543 (case now on Bailii, and the judgment can also be downloaded from the Coram Childrens Legal Centre website – CCLC, and the Association of Lawyers for Children, intervened in the case).
Giving judgment, the Master of the Rolls Lord Dyson said that there was no such power:
31. As the judge acknowledged, LASPO provides a comprehensive code for the funding of litigants whose case is within the scope of the scheme. It is a detailed scheme. I do not consider that it is possible to interpret either section 1 of the 2003 Act or section 31G(6) of the 1984 Act as giving the court the power to require the Lord Chancellor to provide funding for legal representation in circumstances where such funding is not available under a scheme as detailed and comprehensive as that which has been set up under LASPO. The court must respect the boundaries drawn by Parliament for public funding of legal representation. In my view, the interpretation adopted by the judge is impermissible: it amounts to judicial legislation.
37. For these reasons, I consider that section 1 of the 2003 Act does not give the court the power to require the Lord Chancellor to incur public expenditure in payment for legal representation in civil and family proceedings. The provision of legal services cannot be described as coming within the scope of the duty to ensure that there is an efficient and effective system to support the carrying on of the business of a court.
41.The fact that costs associated with court hearings are on occasion met by HMCTS pursuant to the Lord Chancellor’s general duty under section 1 of the 2003 Act (to ensure that there is an effective and efficient system for the carrying on of the business of the family court) is not material to the funding of legal representation.
42. Most (if not all) of the considerations which I have mentioned above in relation to section 1 of the 2003 Act also lead me to conclude that section 31G(6) of the 1984 Act cannot be invoked to require the Lord Chancellor to fund legal representation to a litigant who does not qualify for legal aid because he does not satisfy the means test. Ms Whipple makes these further points which I accept. First, section 31G(6) derives from section 73 of the Magistrates’ Courts Act 1980 which itself derives from the identical provision in the Magistrates’ Court Act 1952. It enables the court to put questions to a witness on behalf of a party in the absence of legal representation, or to take steps itself to cause those questions to be put to enable effective examination of the witness. It cannot, on any plain reading, be interpreted as giving the court power to order funding of legal representation for a party.
43. Secondly, on a plain and natural interpretation of the language of section 31G(6), it is predicated on the party not being represented. If the party were to become legally represented, section 31G(6) would fall away.
44. Thirdly, the way in which “cause to be put” has historically been applied in practice is that the justices’ clerks in the magistrates’ courts could be asked to put questions to a witness on behalf of a party, where it was not possible for the party themselves to do so. Following the reorganisation of the Family Court, the justices’ clerks are now available to perform this function in any part of the Family Court and not only when magistrates are hearing the matter.
45. It follows that I respectfully disagree with what the President said at para 79 of his judgment in Q v Q. It would seem that he did not have the benefit of the detailed submissions which have been made to this court.
46. I conclude, therefore, that the judge had no power to make the order that he made and I would allow the appeal on the first ground. It is not therefore necessary to deal with the other grounds of appeal. But I should say in relation to the second ground that I did not understand it to be contended by anyone that the imposition of a means test is of itself contrary to the Convention (it plainly is not). I propose to say nothing on the question whether the judge was wrong to conclude that the father could not afford to pay for his legal representation (the third ground). We heard a good deal of argument on the fourth ground of appeal, viz that, unless the judge’s order were to stand, there would be a violation of the article 6 rights of the father and the article 6 and 8 rights of K and H. In deference to counsel’s submissions and in view of the importance of the issues raised, I propose to say something about this ground of appeal.
Dyson MR therefore went on to consider the Convention rights issues. But he concluded that, in most cases questioning by the Judge or by a Justice’s Clerk (who can be made available even in a case not heard by Magistrates) would be sufficient and not a breach of Article 6 or 8 – and that it would be sufficient in this case. He conceded that in some very complex and serious cases that would not be appropriate, and such a case might amount to a breach. He called for there to be a statutory scheme created to allow for the appointment of a legal representative in such cases.
This judgment firmly puts to rest the idea, proposed by Munby P and first implemented by HHJ Bellamy, that cuts to legal aid can be circumvented in appropriate cases by finding funds from some other source. The courts simply don’t have the power to require public funds to be spent in that way when there is a comprehensive statutory scheme which provides for cases which can – and cannot – be funded. That might, in some cases, result in a breach of Article 6 or 8. A fall-back statutory scheme in such cases would be useful – and the interveners in this case have called for one to be enacted. But it needs to be a statutory scheme, and it would be surprising if there is significant political appetite for creating what would amount to a second legal aid scheme to fill (some of) the gaps left by cuts to the first.
The government is likely to argue that the exceptional funding scheme is there to cater for cases where a lack of funding would breach Article 6 or 8. It is worth noting that the father in K & H was not in any event a victim of the LASPO cuts – he was financially ineligible, and so would never have got legal aid, even if LASPO had never been enacted. So he could not have got exceptional funding, which is means tested. As Dyson MR pointed out, the ECtHR has said that the imposition of a means test is not incompatible with Article 6.