Judge decries lack of legal aid for illiterate mother

Family Law|October 9th 2014

A Family Court judge has expressed concern that a mother who “is unable to read or write” has gone without legal aid in a dispute over her four children.

In Re H, the mother was described as a woman who had problems with hearing and speech in addition to “intellectual difficulties”.

The father had applied for a child arrangements order in his favour. Under Section 8 of the Children Act 1989, these orders determine where a child will live. The mother objected to her children living with their father an opposed the application. She tried to secure legal aid funding for representation but was refused.

The matter first came before a district judge. He said that without legal aid, “given her evident speech, hearing and learning difficulties”, it was “inevitable” the mother’s rights under Article 6 and Article 8 of the European Convention on Human Rights (ECHR) were “at risk of being violated”.

These Articles guarantee the right to fair a trial and the right “to respect for [their] private and family life”. The district judge adjourned the case to allow the mother to secure legal aid funding. However, she was unable to do so.

Her Honour Judge Hallam presided over the final hearing and immediately became concerned about the mother’s inability to secure legal aid. She noted that the father was legally represented, as was the local authority which supported his application. The mother, on the other hand, was only able to have representation because a local law firm had agreed to take up her case pro bono.

The judge said the mother “would not have been able to represent herself in a case as complex as this”. As a result, she would have been denied access to the court if were not for “the extremely fortunate event” that someone was willing to represent her for free, the judge claimed.

Judge Hallam said that had someone not done so, the mother would have faced “two advocates pursuing a case against her”, which would be deeply unfair. Even with representation, the judge ruled that the mother’s Article 6 and Article 8 rights under the ECHR had indeed been breached.

She concluded by saying it was not right for legal professionals to take on complex cases such as this without payment for their services. The judge added that, if legal aid is refused for similar cases, “injustices will occur”.

A copy of the judgment was sent to the Legal Aid Board and the President of the Family Division.

To read it in full, click here.

In a similar case earlier this year, a woman with a learning disability was refused legal aid while she fought against the adoption of her daughter.

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