In a decision this week Sir James Munby, President of the Family Division called on the Justice Secretary to intervene in relation to the lack of Legal Aid in a family case which the President felt was disadvantaging the child. The case concerned an application by a father, a convicted sexual offender who was seeking contact with his 7 year old son. The mother of the child opposed the application and expert evidence was involved. Clearly the case was a complex one. It is exactly the sort of case the Ministry of Justice had assured everyone would attract exceptional case funding Legal Aid as clearly it is almost impossible for there to be fair representation of the interests of the mother, the father and the child in circumstances where the parties do not have access to legal advice because their financial circumstances are such that they cannot afford it. There has always been a principle in this country that justice should be open to all and not limited to the affluent.
Unfortunately the impact of the Legal Aid changes introduced in April 2013 have meant that for the vast majority of family cases Legal Aid is no longer available. It had always been understood that the safety net of exceptional funding would be available to parties involved in family cases (and indeed other civil disputes) where the circumstances of the case were such that funding was justified to ensure that human rights were protected. Unfortunately in this case public funding hadn’t been made available so Sir James Munby concluded that the case could not be dealt with justly in the absence of the parties being on an equal footing i.e. both having access to representation. He was particularly concerned about the right to a fair trial and article 6 and 8 of the European Convention on Human Rights. He felt the case couldn’t proceed and that therefore in affect an impasse had been reached which was clearly unthinkable. He commented “There is the risk that if one has a process that is not fair to one of the parents that unfairness may in the final analysis rebound to the disadvantage of the child”. In the end he adjourned the case and invited the Ministry of Justice to intervene in the proceedings so that representations could be made about how the father could be properly legally represented.
Whilst we all work in a world where Government cuts have come to bite in many different ways there must be real concerns where the safety value of exceptional of funding which was supposed to deal with and pick up those cases where a lack of representation would lead to unfairness, seems to be working so badly. The number of cases where exceptional funding has been granted has been very small and much below the level that had been anticipated in advance of the Legal Aid changes. This is clearly an area that the Ministry of Justice need to review. One of the problems has been that the actual process of trying to achieve exceptional funding is extremely complex and takes considerable time. Therefore fewer applications are being made. Whilst the particular details of this case are not clear and of itself seem to raise a number of issues of concern. There are many more apparently everyday cases where people’s access to justice is being denied and they are struggling to secure contact with their children or their financial future and need proper help to do so. As a firm we try to assist by offering a fixed fee advice scheme to assist those on limited budgets as far as possible but we would certainly share the President’s concern about the human rights of those involved in family proceedings and in particular the consequences for their children where access to justice is denied. Efforts by firms to offer alternatives can only go so far and this is clearly an area that the Ministry of Justice needs to explore further.