Here’s an interesting one, and something that I think we may see more of in the future. In NJDB v United Kingdom a father who had been seeking contact with his son took the UK to the European Court of Human Rights (ECHR) for refusing to grant him legal aid to pursue an appeal to the Supreme Court.
Briefly, the facts were that the child was born in 2000. The parents were not married and their relationship ended a few months after the child’s birth. The child remained living with the mother and the father had contact with him. That contact stopped in 2003 and the father issued proceedings in the Alloa Sheriff Court, which presumably was the mother’s local court. A contact order was made by agreement, but this quickly broke down and the father took the matter back to the Sheriff Court, with the benefit of legal aid. The proceedings in the Sheriff Court eventually concluded in 2009, after a final hearing that took place over a remarkable 52 non-consecutive court days. The Sheriff Court decided that it was in the child’s best interests that he did not have contact with his father.
The father appealed to the Inner House of the Court of Session, again with the benefit of legal aid. The Inner House refused the appeal. It should be said that the court noted that the cost of the proceedings at this point, excluding judicial costs, had been estimated at about £1 million, a staggering sum for proceedings of this kind, and that by far the larger proportion of that sum had been borne by the Scottish Legal Aid Board.
The father then sought legal aid to pursue an appeal to the Supreme Court, but legal aid was refused, essentially because there was no substantive issue of law arising to merit an appeal and it was considered that the appeal had little prospect of success. The father could have sought a judicial review of this decision, but chose not to do so as this would have entailed further delay, which would have prejudiced his case. Instead, he proceeded with his appeal to the Supreme Court, where he was represented by lawyers on a pro bono basis. The Supreme Court refused to uphold the appeal.
The father then made his application to the ECHR, alleging that the refusal of legal aid to pursue an appeal to the Supreme Court violated his right to a fair trial under Article 6 of the European Convention on Human Rights.
The ECHR found that the father’s complaint was admissible despite the fact that he had not explored all local avenues (i.e. the judicial review application), primarily because it accepted that the extra delay that that would have entailed would have prejudiced his case. However, the complaint was refused on the merits, essentially for three reasons:
- The father’s claims had been thoroughly examined by the domestic courts at two levels of jurisdiction, in proceedings in which the father had received legal aid and been represented by highly qualified lawyers.
- The father had in any event been represented pro bono before the Supreme Court – the refusal of legal aid did not therefore result in him being forced to accept legal representation by persons with inadequate experience of the kind of litigation in question.
- The Supreme Court waived its fees (which, at the time when I think the appeal was lodged, were the not insubstantial sums of £800 for filing an application for permission to appeal and £1,600 on filing the notice of appeal itself).
Now, the Scottish Legal Aid Board (and, no doubt, its equivalent in England, the Legal Aid Agency) may be breathing a sigh of relief at this decision. However, the obvious question arises as to whether the result would have been the same if legal aid had simply not been available, as is the case now, post LASPO (save in the rare instances where exceptional funding is made available). It seems reasonable to assume that for a second appeal with little prospect of success it most likely would be the same (the state is not under a duty to provide funding indefinitely), but is it so clear for the original hearing or the first appeal? As the ECHR said in its judgment, it is central to the concept of a fair trial that a litigant is not denied the opportunity to present his case effectively before the court and that he is able to enjoy equality of arms with the opposing side.
The full report of NJDB v United Kingdom can be read here.