‘Vulnerable’ mother must be granted legal aid, court rules

Children|August 5th 2015

A vulnerable mother who successfully applied for the rehearing of the care case concerning her daughter should receive legal aid, the High Court has ruled.

In the Matter of M (A Child) concerned a girl born in December 2011. The following summer doctors discovered a fracture in her arm and the local authority began care proceedings. A fact finding hearing took place to determine responsibility for the injury. His Honour Judge Bond concluded that the fracture had been caused by one of her parents “failing to protect M”, but said it was not possible to say which had been responsible. He went on to rule that the baby should live with a family member under a special guardianship order. An order requiring supervision by social workers for 12 months was also made.

In July last year, the mother applied for both orders to be ‘discharged’ (cancelled). However, in the Family Division of the High Court, Sir James Munby said the application had in fact amounted to a request for a rehearing of the fact finding issues. It was based on new evidence which allegedly demonstrated the extent of her disabilities and showed that she was technically a vulnerable adult.

She claimed that the validity of the first fact finding hearing had been significantly compromised by the absence of the evidence and that her right to a fair ‘trial’, under Article 6 of the European Convention on Human Rights, had been breached.

The local authority opposed the application but Judge Bond insisted that:

“Article 6 provides an absolute right to a fair trial. That right cannot be diluted.”

The mother had proved her case, he said, and the fact find would therefore be reheard.

Despite this, the Legal Aid Agency refused the mother funding for her case, saying that her application in relation to the special guardianship order was not the type of case it was obliged to provide funding for under The Civil Legal Aid (Merits Criteria) Regulations 2013.

Sir James was, however, not convinced by their arguments. He declared:

“Once again I am faced with the plight of a vulnerable mother unable to pay the cost of family proceedings in which it is essential that she is enabled to participate properly if her, and her child M’s, Article 6 and Article 8 rights [to a family life] are not to be breached.”

In a short judgement, he ruled that the case was “plainly” eligible for legal aid funding under the regulations. The Legal Aid Agency may not have received adequate information on the true nature of the mother’s case, he suggested.

His Lordship added:

“I trust that the Legal Aid Agency will now be able to move with appropriate speed to ensure that the mother has legal aid for the next and subsequent hearings.”

The judgement is available here.

Photo by amslerPIX via Flickr under a Creative Commons licence

Author: Stowe Family Law

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