The President of the Family Division has called on Justice Secretary Chris Grayling to address legal aid issues in a recent case.
In Q v Q, which involved a convicted sex offender who wanted access to his seven year old son, Sir James Munby adjourned the hearing as the man had no legal representation.
The father was facing a barring order under section 91(14) of the Children Act 1989, which would legally prevent him from seeking any further applications with regard to his son without the leave of the court.
Sir James was seeking an explanation from the justice secretary why legal aid had not been made available in these circumstances.
He said denying the father legal aid could be seen as a breach of two Articles of the European Convention on Human Rights.
The President said:
“[I]n the circumstances I am faced with, unless there is some resolution of the present financial impasse, there would be a breach of either Article 6 or Article 8.”
Article 8 gives everyone the right to respect for their private and family life, and states that no public authority shall interfere unless it is deemed legal and necessary “for the protection of health or morals, or for the protection of the rights and freedoms of others”.
Case law is clear that anyone facing a s91(14) barring order should be represented, as it falls under the remit of Article 8.
There would also be a breach of Article 6, which gives everyone the right to a fair trial.
The article states that if someone on trial “has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require”.
Sir James said that without financial assistance to secure a lawyer, the process would not be fair on the father, noting:
“[T]he domestic obligation on the court is to act justly and fairly and, to the extent that it is practicable, ensure that the parties are on an equal footing.”
Since the legal aid cuts in 2013, there has been a significant increase in the number of people in court who are unrepresented.
The chair of family law organisation Resolute, who has previously condemned the cuts, supported the President’s call for government intervention.
“It is absolutely right for Sir James to ask ministers to intervene – and I hope they will look very seriously at this. Otherwise, if matters continue on their current trajectory, legal representation, advice and support will be the preserve of those who can afford it, not those who are in most need.”