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Children Proceedings after Parental Murder – How Should They be Funded?

Rebecca Stevens, Solicitor-Advocate with Withy King Solicitors, considers the funding issues faced when resolving issues relating to the children of a murdered parent.

Rebecca Stevens, Solicitor-Advocate, Withy King Solicitors

Rebecca Stevens
, Solicitor- Advocate, Withy King Solicitors

Two recently reported cases represent a worrying rise in tragic, but sadly no longer rare, cases where one parent has killed another. Although there are similarities in the facts and issues surrounding Re A and B (One Parent Killed by the Other) [2010] EWHC 3824 and Re T (A Child - Murdered Parent) [2011] EWHC 1185 (Fam) such as contact between the children and perpetrators (who in both instances were incarcerated) and the granting of injunctions, what is strikingly similar in each case is the potential lack of public funding for all parties to proceedings. 

The writer has recently acted in the unreported case of Re X (2010). In this case, the father killed the mother in front of the parties' two children who were both under the age of 10 at the time. 

The father was convicted of manslaughter, due to diminished responsibility, and sentenced to 9 years in prison. Following their mother's death and father's imprisonment, the children moved into their maternal grandparents' home. An application for a special guardianship order was issued by the maternal grandparents in 2008, two years after their daughter's death. The grandparents were not financially eligible for public funding. Instead the local authority supported the grandparents' application with funding for the same capped at £5,000.  

The father had initially instructed a solicitor, on a private basis, who agreed for two experts to report on the matter. A signed consent order had been submitted to the court in this regard although the issue of the identity and letters of instruction to the same remained live. The father's assets were eventually frozen through civil proceedings and he could no longer pay his legal team. Numerous letters were sent to the father, who was now acting in person, to agree the identity of the experts and letters of instruction but no response was received. An urgent directions appointment was therefore requested and this took place in September 2010.

The curricula vitae of two experts were provided to the court, together with draft letters of instruction, and Mr Justice Coleridge explained the content carefully to the father who was present at this hearing. The father gave his consent to the instruction of the experts and to the disclosure of a significant number of records, relating to father and the children, to the experts. The court timetabled the matter through to final hearing, listed for March 2011, along with two further directions hearings, an experts meeting, professionals meeting and pre-hearing review.  

Due to the high number of hearings being listed, all in London, the local authority's fee cap of £5,000 was quickly reached. The grandparents made an application for public funding but since the matter involved private law proceedings, their application was subjected to means testing and was refused on the basis of their income. Although the grandparents' were employed, they had used all their savings in extending their home to provide adequate room for the children.

As both the grandparents and father were without funding only the children had the benefit of publicly funded legal advice. In order to pay for the expert reports, estimated at £35,000, the grandparents faced the prospect of using the children's CICA claim funds.

At a directions hearing in December 2010, the judge was informed of the funding situation and found the prospect of conducting the rest of this matter with only the children being legally represented unpalatable. He made comments requesting the Legal Services Commission to consider carefully whether to grant funding to the parties. Nevertheless, further applications were refused.

In January 2011, at a further directions hearing, counsel for the guardian referred to the reported case of Re A and B (One Parent Killed by the Other) (2010), where Mrs Justice Hogg provided guidance to establish a framework in order to avoid compounding the very significant harm which the children involved in such cases have already suffered, by poor management and unnecessary delay. This was clearly relevant to the case of Re X as lack of legal representation led to significant delays and the complexity of the issues surely required all parties to have the benefit of legal advice. Further, it was possible that the father would need to cross-examine his victim's mother. 

In A and B Mrs Justice Hogg stated (emphasis added):

'In all cases where one parent has been killed by the other the threshold criteria will be met.

'The local authority should give immediate consideration to the issue of proceedings and, whether it considers it appropriate or inappropriate to issue proceedings imminently, it should appoint a social worker specifically for the affected sibling group who should offer immediate and practical help and keep the decision under constant review in conjunction with the local authority's legal department.'

Further, she stated:

'In the aftermath of the killing there will be strong emotions on both sides of the extended family. It is not appropriate to leave the extended family to attempt to resolve matters through private law proceedings. In the event that the case comes before the court as private law proceedings in the first instance then the court should direct that a Section 37 report is prepared by the local authority.' 

Applying the guidance provided, the judge agreed that the threshold should be automatically passed in cases such as these and ordered the local authority to prepare a section 37 report. Further, to make sure the children received all possible support available the judge made an interim supervision order. Since the proceedings now involved public law, the parties were automatically entitled to public funding which was duly granted in early 2011.

The recent case of Re T (A Child - Murdered Parent) [2011] EWHC 1185 (Fam) has similar facts to Re X and A and B. The father had been diagnosed with paranoid schizophrenia and had one child with his girlfriend. On 3 February 2005, the father stabbed the mother, whilst holding their child in his arms, and the mother died. On 16 August 2005 he was convicted of manslaughter on the grounds of diminished responsibility and was detained under the Mental Health Act.

Immediately after the mother's death, the child (along with two half-siblings who were children of the mother by her previous partner) was placed in local authority foster care. The local authority issued care proceedings. For the first year after the mother's death the child remained in foster care and the maternal aunt put herself forward as a carer. An interim residence order was granted in her favour and she later applied for special guardianship which was supported by the local authority.

Following his release from psychiatric care, the father issued an application for contact with the child on 1 May 2010. This was just 4.5 years after his conviction for the mother's manslaughter. This was opposed by the maternal aunt who cross-applied for an order under section 91 (14) Children Act 1989 preventing the father from making any further applications in respect of the child without leave of the court.

The maternal aunt was not financially eligible for public funding. His Honour Judge Clifford Bellamy, sitting as a High Court judge, said (para 72 (iii)):

'The fact that [the maternal aunt] is not financially eligible for public funding and that, even if she were, the Government's intention to exclude some family proceedings from the scope for public funding may mean that public funding would simply not be available to her. The expense of legal representation is an additional pressure on her family.'

Nevertheless the maternal aunt had the benefit of legal representation, as in the case of Re X, due to a contribution from the local authority to her legal costs.

When the father issued his application he was in receipt of public funding and had solicitors acting on his behalf. The maternal aunt was clearly frustrated that the father was able to receive public funding whilst she was not and challenged the Legal Services Commission's decision to grant him public funding in these proceedings. Following this challenge, his public funding was withdrawn mid-proceedings. HHJ Bellamy made the following comments which clearly portray his disproval at the LSC's decision whilst understanding the maternal aunt's frustration (at para 85): 

'I understand fully why [the maternal aunt] and her legal advisors considered it appropriate to challenge the Legal Services Commission about its decision to grant public funding to [the father] in these proceedings. However, the LSC was not then obliged to respond by discharging [the father's] certificate. Having granted public funding to [the father] the LSC should have been very cautious indeed about withdrawing funding mid-proceedings. In particular, I would have expected the LSC to have taken the following matters into consideration:

(a) that although presently symptom-free, [the father] suffers from a serious mental illness;
(b) that the exclusion zone condition imposed by the [Mental Health] Tribunal prevented [the father] from attending any hearing held in this court;
(c) that if [the father] wished to challenge [the maternal aunt's] evidence then, without the benefit of legal representation, he would have to cross-examine her himself – something which he would have found difficult and which she would have found very distressing; and
(d) that the highly unusual circumstances of this case raise some difficult issues for the court to consider.

'Had the LSC considered issues such as these it is difficult to see how it could properly have come to the conclusion that it was appropriate to discharge [the father's] public funding certificate. In my judgment, against the background I have described it was very clearly in the interests of all the parties and not just [the father] that he should have had the benefit of legal representation in these proceedings.'

Although the above cases are extreme the fact that two have been reported in the last year alone is concerning. It is not known how many unreported cases there are but Re X demonstrates that there are more. Given the government's confirmation, on 21 June 2011, of their decision to cut legal aid in certain family proceedings, most commentators (including the House of Commons Justice Select Committee) argue that it is inevitable that more disputes will be handled by litigants in person.

It appears that had the judge in Re T made an order for an interim supervision order and required the local authority to produce a section 37 report, following the guidance in A and B, then the proceedings would have been public law and the parties would have been automatically entitled to public funding. It must be noted that  APP 5 (application for public funding in public law proceedings) specifically states that related proceedings may not be covered by any funding certificate (i.e. private law proceedings) but if these are heard at the same time then it surely must be right for them to be de facto covered.

Of course, the complex proceedings in cases where one parent kills the other lead to a significant number of hearings which can last for years. The timing of an interim supervision order will be vital because it will endure only until the section 37 report has been produced. The local authority may conclude there is no need for their involvement due to lack of welfare concerns. This was the case in Re X and, it appears, was also the case in Re T, evidenced by the local authority's support of the maternal aunt's application for special guardianship.

The court cannot compel the local authority to become involved with a family where they have concluded there are no welfare concerns. If the local authority concludes, in the section 37 report, that there is no need for their involvement this would be the end of the period of entitlement for public funding. 

The requirement for the local authority to produce section 37 reports and to comply with a supervision order potentially costs the state as much in terms of finance, if not more in certain cases, than providing public funding at legal aid rates to enable the parties to be legally represented. The parties, if adequately funded, would have the benefit of legal advice which might prevent some matters from proceeding to court. A litigant in person is more likely to simply issue proceedings, regardless of their prospects of success, without legal advice.  Further, appeals where parties do not have the benefit of legal advice are likely to increase.

A fundamental principle in the English legal system is that 'justice is seen to be done'. Having cases such as Re T, A and B and Re X conducted by litigants in person where there is significant impact on the welfare of the children who are the subject of proceedings, and of paramount concern of the court, surely cannot be right. Moreover, to have the person who killed the child's parent cross examine the deceased's relative, and perhaps carer of the child, is abhorrent.

It must be stressed that Mr Justice Coleridge, in the case of Re X, made it clear that he did not order an interim supervision order and section 37 report "as a device to obtain public funding". He considered the welfare of the children in the case before him and concluded that the maternal grandparents needed the local authority's assistance. Since the children had witnessed their mother's murder at the hands of their father, they required a significant amount of counselling and professional input. Both grandparents worked full-time and could not afford to stop working.

Mr Justice Coleridge followed guidance provided in A and B and it was right that he made this order in this case. However, the government may find that more cases follow in the footsteps of Re X due to the proposed reforms to legal aid.

The public funding status of these cases, where they proceed as private law proceedings, should be contrasted with those where there are allegations of domestic violence. In such cases, where the allegations relate to incidents occurring within 12 months of issuing proceedings, the alleged victim will be eligible for public funding. As in those cases described above, the alleged perpetrator of the violence would be likely to act in person and would cross-examine his victim.

The Victims' Commissioner, Louise Casey, carried out a six month review into the treatment of families who have suffered the ultimate loss at the hands of a criminal or criminals, but who often do not get the support, care or consideration they deserve. In July 2011 she called for new legislation which would provide statutory rights for victims' families.

The grandparents, in Re X, had the traumatic experience of criminal proceedings followed by protracted civil proceedings where the parties were not legally represented due to lack of funding. This cannot be right.

Although these are extreme cases, the judiciary has made it clear that parties to similar cases need to be legally represented. The welfare of the child is the court's paramount concern within proceedings. It appears the government may need to consider this principle and revisit their decision not to provide public funding for private law cases in the future.
Rebecca Stevens is a Solicitor-Advocate at Withy King Solicitors and assisted Richard Ellis who was instructed by the Children's Guardian in Re X