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Judge bemoans lack of legal aid in complex children cases

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As I reported here on Friday, last week the Government published its long-awaited review of the effects of the legal aid cuts introduced in 2013. To deal with the problems identified in the review an additional £8 million of funding was announced. But that is little more than a sticking plaster to cover the gaping wound caused by cutting £350 million per year from the legal aid budget. The problems will continue.

Those problems were highlighted in a judgment published just one day after the review: the judgment of Mr Justice Williams in R (A Child: Appeal: Termination of Contact).

The judgment concerned an appeal by a father against orders made in child arrangements proceedings in relation to his 12 year old son. In particular, the father was appealing against an order that he have only indirect contact with his son.

The case was complicated. It had a long history, stretching back to 2013. It involved findings against both parties, including serious findings against the mother, the most serious of which was that she had alienated the child from his father, as a result of which the child had suffered and/or remained at risk of suffering from significant long-term emotional harm. It also involved the local authority, and expert evidence from a clinical psychologist. There had been five ring binders of evidence at the hearing from which the appeal was made. If all of that were not enough, the case had an added complication in that the mother is profoundly deaf, and had to be assisted at court by both a deaf intermediary and two British Sign Language interpreters.

The judge in the court below had ordered that the boy should live with the mother, and that he was only to have indirect contact with his father by means of the father sending letters cards or gifts by post once per month for six months, and thereafter fortnightly. The judge also ordered that the father could not make any further applications without the leave of the court.

The father appealed against these orders, to the High Court.

Neither the father nor the mother could afford legal representation at the hearing in the High Court. They were, however, both represented by barristers acting ‘pro bono’, i.e. without charge, which led Mr Justice Williams to say this:

“That counsel for the father and for the mother should appear pro bono in such a complex case as this is in the finest traditions of the legal profession. Up and down the country, counsel, solicitors and legal executives fill the gaping holes in the fabric of legal aid in private law cases because of their commitment to the delivery of justice.”

He went on:

“Without such public-spirited lawyers how would those such as the father and mother in this case navigate the process and present their cases? How judges manage to deliver justice to the parties and an appropriate judgment for the child without such assistance in cases like this begs the question. It is a blight on the current legal aid system that cases such as this do not attract public funding.”

And he concluded with a swipe at the stereotype so many people have of lawyers:

“So far removed from the stereotyped ‘fat-cat,’ the legal profession in cases such as this are more akin to Boxer in George Orwell’s ‘Animal Farm’ always telling themselves “I will work harder.”

“It is a blight on the current legal aid system that cases such as this do not attract public funding.” So says a High Court judge. And yet nowhere amongst the measures set out by the government in its “new vision for legal support” published alongside the review is a commitment to provide legal aid for cases such as this.

And what happens if one or both of the parents is not lucky enough to secure free representation? It must happen. There is only so much that lawyers can do for free, and it is nowhere remotely near what used to be done under legal aid. The answer is that parents, and more importantly children, will not receive justice, as simple as that.

For the purpose of this post I need not go into the detail of Mr Justice Williams’ decision on the appeal, save to say that it was allowed. If you want all of the details you can read the full judgment here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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