A society that no longer cares about justice

Family Law|November 3rd 2014

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.

Photo by sparkle-motion via Flickr under a Creative Commons licence 

Author: Stowe Family Law

Comments(3)

  1. theUKhasbecomeajoke says:

    A society that no longer cares about justice! More like a country that never cared about children. Even the quest to find a chair to review previous sex abuse appears to be beyond these shores. It’s a pity the home sectary isn’t trying to employ a social work, foster parent or child molester! The quest would be much easier…

  2. Stitchedup says:

    “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.”

    But this is exactly the sort of problem legal aid created, i.e. one party got legal aid and the other part didn’t, more often than not the father didn’t as he was ” not eligible as the father’s modest earnings disqualified” him, and the father’s earnings (and his small amount of capital) were not, however, nearly sufficient for him to be able to afford to pay for legal representation himself. Until such time that this imbalance can be put right many people will oppose legal aid as it was.

    The situation that these parents found themselves in, i.e. they taking on a fully represented state is no different to what many people faced when legal aid was available for family matters, i.e. one party had full representation paid for by the state whilst the other had nothing. However, many in the legal profession were happy for that injustice to continue unchallenged and we heard few, if any, “such judicial exhortations”.

  3. Luke says:

    Stitchedup is right, he makes the exact point that I think many of us would make, when one party got Legal Aid and the other party didn’t then unless the other party was a multi-millionaire they were at a massive disadvantage.
    The one with Legal Aid had an incentive when fighting a case to drag it out as long as possible, knowing the other person would be haemorrhaging money in legal fees and would be desperate to get an agreement – even for a bad settlement – just to get out of court and stop the money drain out of their savings account.
    I have asked John before how this is fair – always to the sounds of silence – so I find it ironic how he now talks about a case where a person’s limited earnings disqualify them from Legal Aid but cannot afford representation !
    .
    Whilst the Legal Aid was flowing we never heard a squeak out of John Bolch on the unfairness of all this – in fact he said that lawyers were only doing Legal Aid out of the goodness of their hearts and that financially it offered a poor return for them !
    So after this article I find it hard not to take the view that John is really mainly worried for his profession about the Legal Aid ‘gravy train hitting the buffers’ – not about justice for all.

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