It’s difficult to imagine a worse situation for anyone to find themselves in than the possibility of having their child taken away by the State. To face that possibility without proper legal representation is, as the President of the Family Division Sir James Munby has said, unthinkable.
Yet that is exactly the situation some parents now face, thanks to the government’s legal aid policy. To save a relatively trivial amount of public expense, the government is abandoning some of its most vulnerable and needy citizens, in a system that no longer seems to care.
The remarkable judgment of the President in D (A Child) was mentioned here on Friday. I do not propose to go into the details of the judgment, but I felt that I had to say a few words about its implications.
The situation in D (A Child) was that legal aid was available to the parents but they were not eligible as the father’s modest earnings disqualified them. The father’s earnings (and the parents’ small amount of capital) were not, however, nearly sufficient for them to be able to afford to pay for legal representation themselves.
Now, most cases in which children are removed from their parents involve care proceedings and in care proceedings legal aid is available to the parents irrespective of their means. However, D (A Child) did not involve care proceedings, and yet the situation the parents faced was the same: the local authority removing their son.
To make the situation even worse, the parents were quite unable to represent themselves, both suffering from learning difficulties.
In the circumstances, the President considered that it would be unthinkable that the parents should have to face the local authority’s application without proper representation. To require them to do so, he said, “would be unconscionable; it would be unjust; it would involve a breach of their [human] rights … it would be a denial of justice.” Further, if his parents were not properly represented this would prejudice the child himself – he would not have a fair trial if his parents did not.
Despite this, said the President, the State had washed its hands of the problem, leaving it to the goodwill of the legal profession to represent the parents for free, which is what has so far happened in the case. That, however, cannot be the solution to all such cases – a system which relies entirely upon lawyers providing their services for free is obviously unsustainable.
This is not the first recent family case in which a judge has expressed concern about the lack of legal aid. For example, in B (A Child) the father faced serious allegations but his legal aid application was refused. In view of the exceptional circumstances His Honour Judge Wildblood QC requested that the Legal Aid Agency reconsider the father’s legal aid application. They did so, but rejected it again. In Re H Her Honour Judge Hallam expressed her concern that the mother involved in private law proceedings regarding the arrangements for her four children had not been in receipt of legal aid. In Q v Q a father, applying for contact with his son, had been refused legal aid and the President himself expressed concern that the proceedings would not be just and fair without the father being represented.
And so it goes on. I was going to continue by asking how many such judicial exhortations would be required before the Government takes notice, but I don’t think the Government has any intention of taking notice of such things. We now live, it seems, in a society that no longer cares about justice, save for those who can afford it.