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“There is a price for justice but at whose expense?”
Sir James Munby, President of the Family Division yesterday gave judgement dealing with three cases in a single judgment because they raised sufficiently similar issues and which may potentially have far reaching implications.
As we discussed in our previous blog, The Legal Aid Punishment and Sentencing of Offenders Act (LAPSO) resulted in a stark reduction in the availability of Legal Aid in family matters. Put simply, legal aid is not available for private law family matters unless you have suffered domestic abuse or are involved in proceedings involving children and the children have suffered harm at the hands of the other party to the proceedings. Either way, that harm has to be proven and evidenced before funding will be granted.
There is also the possibility of funding for “exceptional” cases. Whether or not a case is exceptional is determined by the Legal Aid Agency (LAA) and essentially the Legal Aid Agency should consider a case exceptional if a failure to provide funding would be a breach of –
(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or
(iii) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.
This is not to say that under these provisions everyone has a right to advice and representation in court proceedings (notwithstanding how desirable that might be). The reality is that this ability for the LAA to grant exceptional case funding has resulted in a tiny percentage and therefore a handful of cases being granted.
Ultimately, the result of these changes is that the court has to deal with more people who are forced to represent themselves as they can not afford to instruct solicitors and the additional difficulties that this can cause for example because the parties can not afford to instruct an expert which a judge feels is necessary to help him or her decide the case fairly or where the victim of rape or serious domestic abuse faces the undesirable prospect of being cross examined by the person accused of doing these things to them.
The three cases considered by Sir James Munby were private law cases where a father is seeking to be involved in his child’s life. In each case, the mother has Legal Aid but the father does not. In one case, the father is a convicted sex offender. In the other two cases, the mothers allege they were raped by the father, which both men deny. The judge noted that the absence of Legal Aid for those unable to pay for their own representation created a real problem and had the potential of preventing the court in ensuring a fair hearing by having access to the best evidence for the experts or the parties themselves and could be seen as breaching the parties human rights including their right to a fair trial.
The judge concluded that in terms of attendance of experts at court, HMCTS should cover the cost if there is no other properly available public purse, in accordance with the court’s duty to deal with the case justly. The judge further concluded that in terms of representation in court, if there is no alternative way to ensure a fair trial and compliance with Articles 6 and 8 of the European Convention on Human Rights, then the judge should be able to direct that appropriate representation is provided by, at the expense of, HMCTS.
This is not to say that funding provided by the court is available as of right in the absence of Legal Aid and it will surely only be very exceptional cases that would justify this. Sir James Munby said that this would be an order of last resort and no order of this sort should be made except by or having first consulted a High Court Judge or a Designated Family Judge.
Karen Johnson – (Associate Solicitor and Family Mediator) – A Graduate of the University of East Anglia who then completed her Legal Practice Course at the College of Law in London and then Qualified as a Solicitor in 2002 working in a local High Street Firm before Joining Breeze & Wyles Solicitors in 2009 and becoming an Associate with the firm in 2011.
Karen is a highly skilled and experienced Family Solicitor with in excess of 10 years experience of working in Family Law. She is a Resolution Accredited Specialist in the fields of Domestic Violence and Financial Matters. Karen is additionally a Family Mediator trained by and a member of the Family Mediators Association (The FMA) an association with over 20 years experience of Family Mediation.