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Sir James Munby: courts may pay for legal representation

The court service may have to pay for legal representation when legal aid has been refused, the President of the Family Division has declared.

In a joint judgement, Sir James Munby examined three separate cases – Q v Q, Re B, and Re C.

Sitting at the High Court in London, the President said:

“Each is a private law case in which a father is seeking to play a role in the life of his child, who lives with the mother. In each case the problems with which I am faced derive from the fact that whereas the mother has public funding the father does not.”

The problems caused by these unbalanced situations had been “considerably exacerbated by LASPO”.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) introduced significant cuts to legal aid provision when it came into force last April.

Sir James examined the restrictions introduced by LASPO. The Act removed legal aid from most private family law cases (ie disputes within families). However, legal aid is still available for cases in which domestic violence has been alleged and for “exceptional cases”. These include instances in which failure to provide cover legal aid could breach the European Convention on Human Rights.

The fathers in all three cases had applied for exceptional funding or were considering doing so.

LASPO’s effects had been “dramatic” said Sir James. There has been a “drastic reduction” in the number of cases in which either one or both parties are represented, and a corresponding rise in the number of those in which neither party is represented, he explained.

Just eight “exceptional” funding applications were granted between April and December last year while only nine were granted between April last year and March this year.

The President said:

“If the scheme is indeed working effectively, then it might be thought that the scheme is inadequate, for the proper demand is surely at a level very significantly greater than 8 or 9 cases a year.”

He also noted a rise in the number of calls to the Bar Pro Bono Unit, which provides pro bono (free) legal assistance. This received 171 applications for assistance in 2012, but the number jumped significantly to 291 during the following year.

The President examined the circumstances of each of the three cases and the problems arising from the fathers’ lack of legal aid. Two of the cases involved allegations of rape and one of sexual assault.

In Q v Q, legal aid had been refused because the father was a convicted sex offender. The judge said therefore:

“…the cost [of representation] will, in my judgment, have to be borne by Her Majesty’s courts & tribunals service. HMCTS will also have to pay the cost of providing the father with an interpreter in court. If the father is still unable to obtain representation, I will have to consider whether the cost of that should also be borne by HMCTS.”

In the other cases, too, the absence of legal representation constitute a breach of the European Convention on Human Rights, he declared.

The President concluded that “…there may be circumstances in which the court can properly direct that the cost of certain activities should be borne by [the HM Courts and Tribunals Service] HMCTS. I emphasise that (the provision of interpreters and translators apart) this is an order of last resort.”

However, such orders may not be appropriate, he added, “in less serious cases”.

“I express no concluded views, beyond drawing attention to the trite observation that everything will, in the final analysis, depend upon the particular facts of the specific case.”

Read the full judgement here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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