Access to Justice?
Sir James Munby described the circumstances of a couple’s application for legal aid in care proceedings as ‘unprincipled’ and ‘unconscionable.’ His comments were made in a Judgement in Re D (A Child) (No2) 2015.
The local authority commenced care proceedings and under s 31 of the Children Act 1989. At the final hearing the local authority’s care plan recommended the child remain in their care under a full care order to be reviewed after a year with a possibility to move to supervision order.
On 31st March 2014 the local authority gave the parents notice that they intended to remove their child on 25th April 2014. The father’s solicitor filed an application to discharge the care order in accordance with s 39 Children Act 1989. Additionally, the local authority filed an application for a placement order. These applications did not fall within the criteria of non means tested legal aid.
Sadly, the parents could not afford to pay for legal representation and did not qualify for legal aid. The parents would have been entitled to legal aid to challenge the initial application issued by the local authority to remove their child but not to discharge the care order or placement application. Worryingly, the father had a “cognitive impairment with an IQ of around 50” and the mother had been assessed as being “on the borderline of a mild learning disability.”
The President directed a further hearing should be listed to decide whether the parent ‘s legal costs should be paid by one, some or all of the following, the Local Authority, the Legal Aid fund and/or HM Courts and Tribunal Service.
The Legal Aid Agency reassessed the father’s financial circumstances and he was granted emergency legal aid for two hearings. In October 2015 it was confirmed that the parents were offered public funding on the basis that they had to pay contributions. The parents had to rely on pro-bono (free) legal representation to deal with the legal aid issues.
Upon considering the effect on the parents and the child the President said the following
“This is a case about three human beings. It is a case which raises the most profound issues for each of these three people. The outcome will affect each of them for the rest of their lives. Even those of us who spend our lives in the family courts can have but a dim awareness of the agony these parents must be going through as they wait, and wait, and wait, and wait, to learn whether or not their child is to be returned to them. Yet for much of the time since their son was taken from them – for far too much of that time – the focus of the proceedings has had to be on the issue of funding, which has indeed been the primary focus of the last three hearings. The parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane.”
It is hard to imagine any compassionate human being who would not agree that tax payer’s money should have been used earlier to help this family. The Legal Aid system that we have is surely he for ‘us,’ to provide funding for meritorious cases, for those who need legal advice and assistance. This case is a shocking example of how the current eligibility regime is failing families and the scheme, overall, is failing in its purpose.