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President directs HMCTS to fund legal representation of non-legally aided fathers

Ruling overcomes ‘inadequate’ exceptional funding scheme

The President of the Family Division, Sir James Munby, has stated that Her Majesty's Courts and Tribunals Service (HMCTS) will have to fund parties' representation by lawyers in appropriate private law children proceedings if the Legal Aid Agency refuses to do so.

In Q v Q; Re B; Re C [2014] EWFC the President was faced with three private law children cases in each of which the mother has public funding but the father does not. He said that although in these instances the issues pre-dated the implementation in April 2013 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), the problem – in the eyes of most family law practitioners and judges – has been very considerably exacerbated by the LASPO changes.

As a consequence of LASPO parties to private law children proceedings might qualify for legal aid only if they have suffered or are at risk of suffering domestic abuse, or where the other party to proceedings is a risk to children; or if they were regarded as an "exceptional" case in accordance with section 10 of the Act.

The President described the effect of the changes:

"There has been a 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 noted that there had been only nine "exceptional" funding applications granted in family cases between April 2013 and March 2014. He said:

"If the scheme is indeed working effectively [as stated by the Minister of State for Justice, Lord Faulks] 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."

The President quoted from a letter to the court from Public Law Project, which was involved in all of the cases, concerning the "exceptional" funding application process:

"[I]t was time-consuming, legally and evidentially involved, and that applications were almost inevitably bound to fail. The observations we drew from our work were that various systemic barriers meant that it was close to impossible for an applicant to satisfy the LAA that they qualified for funding … in those cases in which we were involved or have been given case details, the trend appears to be that funding has only been granted once litigation has been threatened."

The President said that the three cases before him raised common and overlapping issues. The absence of public funding for those too impoverished to pay for their own representation potentially created 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 [as in Q v Q]."

Re B and Re C raised a particularly difficult problem, arising out of the fact that in each case the father is accused of rape and that in Re C the father is also being prosecuted for that offence in the Crown Court. Therefore in each case, the President said, there was a pressing need for the father to have access to legal advice on three related questions of no little complexity and difficulty: Is the father a compellable witness in the Family Court? Can the father take advantage in the Family Court of the privilege against self-incrimination? Can any evidence he gives in the Family Court be used in support of any criminal proceedings? And, what advice should he be given as to whether or not to give evidence (assuming he is not compellable) and as to whether or not to plead privilege (assuming it is open to him to do so)? Citing an article by Sarah Lucy Cooper, Pleading the Fifth Amendment – the privilege against self-incrimination, the President said that it was questionable as to whether each of the fathers could refuse to answer questions.

In relation to the father in Q v Q, the President concluded that in the event that the father's application for public funding under LASPO is unsuccessful, "the cost will, in my judgment, have to be borne by HMCTS. HMCTS will also have to pay the cost of providing the father with an interpreter in court. If the father is still unable to obtain representation, I will have to consider whether the cost of that should also be borne by HMCTS."

In Re B – where in an earlier judgment HHJ Wildblood QC had said "If ever there was exceptional private law litigation then this must be it" – legal aid funding has now been provided to the father by the LAA only following the issue of judicial review proceedings against it.

In respect of Re C, the President said:

"I am inclined to think that, for all the reasons already indicated, the father in Re C requires access to legal advice beforehand and representation at the fact-finding hearing to avoid the very real risk of the court being unable to deal with the matter justly and fairly and of his rights under Articles 6 and 8 being breached. I am inclined to think, therefore, that, if he is unable to afford representation and pro bono representation is not available, and if there is no other properly available public purse, the cost will have to be borne by HMCTS."