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Everyone really ought to read Re D

 

I had meant to write about this over the weekend, but the Muse just never came to me.

 

Re D 2014

 

http://www.judiciary.gov.uk/wp-content/uploads/2014/10/re-child-d.pdf

Please read Allan’s excellent piece here

http://celticknotblog.wordpress.com/2014/11/02/if-the-state-wants-to-take-your-child-be-prepared-to-represent-yourself/

 

Basically it is a judgment by the President, building on Q v Q, and also the decision of Baker J in Re D.  The case involved a child who was at home with parents under a Care Order – the LA felt it had gone wrong and removed the child. Baker J heard a case where the parents (the father lacked capacity) wanted to challenge that, and the only option seemed to be an application to Discharge the Care Order. Baker J found that the other option is an application under the Human Rights Act.

The parents did not qualify for legal aid as a result of LASPO, and thus were represented by counsel acting for free. Not ideal, because that is dependent on a man with learning difficulties (a) KNOWING that there’s something he can do and what it is and (b) convincing a lawyer to do the case for free for him.

 

Deep breath.

 

Next, what happened was that the Local Authority decided that they were not going to rehabilitate the child to the parents care and a Judge agreed. Due to the age of the child, the alternative plan was adoption. The Local Authority applied for a Placement Order, which authorises the child to be placed for adoption.

 

You will recall all of the Court of Appeal decisions this last year about how serious an order adoption is, so of course, if a parent is facing a plan to adopt their child, they get free legal advice and representation to fight the case, right?

 

Wrong.

 

IF THE PLACEMENT ORDER application happens WITHIN care proceedings, the parent has free legal advice and representation to fight the case. BUT, if the Placement Order is a stand-alone application (i.e the Care Order has already been made) then they do not qualify automatically for legal aid.

 

Instead they rely on the Legal Aid Agency deciding that their case is exceptional and that their human rights would be breached if they were not represented.  That’s the s10 LASPO powers that the LAA repeatedly fail to use, even when Judges tell them that if it is not used in a particular case it would breach the parents article 6 rights.

 

Even worse than that, because the father had no capacity, the Official Solicitor has to be invited to represent him. Without public funding, the Official Solicitor is potentially exposed to any costs order. So, in this case, the lawyers representing father (who, remember, aren’t earning a penny out of the case) had to give the Official Solicitor an INDEMNITY  – a legally binding promise that if the Court eventually made a costs order against the father that the other sides costs be paid, those would be met by the lawyers out of their own pockets rather than by the Official Solicitor.

 

If you think that it might be tricky to find a lawyer to represent you for no payment, it is, but it is possible. But I’ve never heard before of a lawyer representing someone for no payment who also took on a financial risk of paying the other sides costs. These were extraordinary people.

 

So, the case got before the President, it being one of those case post Q v Q, where the Court might consider who should pay for the parents legal costs.

 

The judgment DOES NOT deal with the merits of the case, or why the child was removed, or whether adoption is right or wrong – it is purely dealing with whether a system that simultaneously says “Adoption is the most draconian order available in the law” and “you can’t have a lawyer to fight it, even if you can’t read” is a fair system.

 

In the circumstances as I have described them, the parents’ predicament is stark, indeed shocking, a word which I use advisedly but without hesitation.

31. Stripping all this down to essentials, what do the circumstances reveal?

i) The parents are facing, and facing because of a decision taken by an agent of the State, the local authority, the permanent loss of their child. What can be worse for a parent?

ii) The parents, because of their own problems, are quite unable to represent themselves: the mother as a matter of fact, the father both as a matter of fact and as a matter of law.

iii) The parents lack the financial resources to pay for legal representation.

iv) In these circumstances it is unthinkable that the parents should have to face the local authority’s application without proper representation. To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.

(v) If his parents are not properly represented, D will also be prejudiced. He is entitled to a fair trial; he will not have a fair trial if his parents do not, for any distortion of the process may distort the outcome. Moreover, he is entitled to an appropriately speedy trial, for section 1(2) of the 1989 Act and section 1(3) of the 2002 Act both enjoin the court to bear in mind that in general any delay in coming to a decision is likely to prejudice the child’s welfare. So delay in arranging for the parents’ representation is likely to prejudice the child. Putting the point more generally, the court in a case such as this is faced with an inescapable, and in truth insoluble, tension between having to do justice to both the parents and the child, when at best it can do justice only to one and not the other and, at worst, and more probably, end up doing justice to neither.

vi) Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that the State is not in breach of the State’s – the United Kingdom’s – obligations under the Convention? As Baker J said in the passage I have already quoted, “It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.”

 

The President very neatly identifies the problem, but is there a solution?  (well, there’s an immediate one – declare s10 LASPO incompatible with article 6 – it is not being implemented as it is written, and in any practical sense it is now incompatible. Also the schedule in LASPO that does not provide for Placement Orders to attract non-means non-merit funding is incompatible with article 6)

 

We’re not going down that route yet though. Instead, the President keeps inviting the knuckle-heads who have got us into this mess to come up with a solution.

 

 

  • What then is the appropriate way forward?
  • If legal aid is not available for the parents then I need to explore whether there is some other public pocket to which the court can have resort to avoid the problem. There are, in theory, three other possible sources of public funding. As I said in

 

  1. Q v Q [2014] EWFC 7, para 18:

“In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay. In a case … where one party is publicly funded … it is, I suppose, arguable that, if this is the only way of achieving a just trial, the costs of the proceedings should be thrown on the party which is in receipt of public funds. It is arguable that, failing all else, and bearing in mind that the court is itself a public authority subject to the duty to act in a Convention compliant way, if there is no other way of achieving a just and fair hearing, then the court must itself assume the financial burden, as for example the court does in certain circumstances in funding the cost of interpreters.”

I continued (para 19):

“May I be very clear? I am merely identifying possible arguments. None of these arguments may in the event withstand scrutiny. Each may dissolve as a mirage. But it seems to me that these are matters which required to be investigated”.

The need for such investigation in the present case is, if anything, even more pressing than in

Q v Q.

I have accordingly directed that there be a further hearing at which, assuming that the parents still do not have legal aid, I shall decide whether or not their costs are to be funded by one, or some, or all of (listing them in no particular order) the local authority, as the public authority bringing the proceedings, the legal aid fund, on the basis that D’s own interests require an end to the delay and a process which is just and Convention compliant, or Her Majesty’s Courts and Tribunals Service, on the basis that the court is a public authority required to act in a Convention compliant manner.

Copies of this judgment, and of the order I made following the hearing on 8 October 2014, will accordingly be sent to the Lord Chancellor, the Legal Aid Agency, Her Majesty’s Courts and Tribunals Service and the Association of Directors of Children’s Services, inviting each of them to intervene in the proceedings to make such submissions as they may think appropriate. If they choose not to intervene, I shall proceed on the basis of the conclusions expressed in this judgment, in particular as I have set them out in paragraph 31.

In the meantime, bear in mind that any plan of the child being at home with a parent, or with a relative under a Care Order carries huge risks for all involved.

The parent may find themselves, if all goes wrong, faced with a removal that they haven’t got legal aid to fight, and a Placement Order application that they haven’t got legal aid to fight.

And a Local Authority may find themselves, depending on the outcome of the next stage, facing the prospect of paying parents lawyers to litigate against them in a future application for a Placement Order if it all goes wrong.

[I have a loophole solution to this, which I am happy to share with any lawyer who contacts me – I’m not going to put the solution up online to tip off the LAA as to the loophole though]

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

15 responses

  1. I can’t work out (tho’ not been back to Baker J in detail yet…) why Sir MunP abandonned the HRA 1998 application; or perhaps it was abandoned on advice?

    PS and of ‘….and thus were represented by counsel acting for free. Not ideal, because that is dependent on a man with learning difficulties (a) KNOWING that there’s something he can do’ – perhaps woth an edit: I thought you meant counsel had learing difficulties (tho it gets clearer if you read (b).

    PPS we’ve debated ‘sic’; but what abt ‘for free’. I think UK English is just ‘free’ – as in ‘many lawyers act free (some call it pro bono) nowadays’….

  2. I know I have raised this before and you are on the balance of probabilities likely to be right but it is really bugging me. Both of these parents would once again be classed as disabled ie a long term impairment that impacts on their day to day life.
    The Government who passed LAPSO is a public authority and so is the LAA . HMCTS where the drama is played out is so too. Each of these public bodies cannot discriminate under the 2010 Equality Act against disability as it is a protected characteristic. They have to make reasonable adjustments to allow a disabled person to access services the same as a person without a protected characteristic. Would a lawyer not count as a reasonable adjustment? I am sure they have been called worse things!
    Public sector equality duty

    (1)A public authority must, in the exercise of its functions, have due regard to the need to—

    (a)eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

    (b)advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

    (c)foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

    (2)A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).

    (3)Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

    (a)remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

    (b)take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

    (c)encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

    I am not sure if this part is directly related to employment , if not surely 1b and 3a applies. Also should not legislation be anti discriminatory because LAPSO does not appear to have been drafted taking that into account.

    Sorry if I am spouting utter nonsense.

    • No, most of us would agree with you. S10 LASPO was supposed to be a safety net for people like this, but it is a safety net that is being locked away in a cupboard rather than set up under the trapeze.

  3. Ashamed to be British

    Unfair, I’m not a lawyer but I sure as hell need that loophole on the hurry up!

    Do we know if the appeal against QvQ was successful or whether it has been heard yet or not?

    • I think what parents , grandparents get so upset about is the lack of a level playing field as well as the lies. It was interesting to hear the MP Craig Whitticker who sits on the Education Committee admit on Radio 4 Broadcasting House that it is a postcode lottery and that the threshold was different in various parts of the country and considerably higher in London.
      With regard to the previous article I reckon all of us asking if it was misconduct/misfeasance it probably is as no one has denied it. As it was a legal decision it may have been a lawyer.I have worked out that’s what lawyers do if you are right, they just don’t answer . Which they must have weeks, no months of special training for as they are not naturally without an opinion.

    • I don’t think there is an appeal on Q v Q – the President did a similar thing of adjourning the final decision about who would pay for the costs for the interested parties to have a chance to say what they thought, and I THINK that second hearing hasn’t yet happened.

      • Ashamedtobebritish

        I’m pretty sure it’s in appeal (QvQ that is)
        Where would I find out?
        Are you going to let me on on the loophole seeing as I’m your favourite follower … And I voted you in for best blogger :p

      • It’s not really that tricky, you just have to convert a case which doesn’t get non-means non-merits funding (a standalone Placement Order) into a case that does (Care proceedings plus Placement Order). So you need to get RID of the Care Order and immediately recommence care proceedings. Now, how to do that if the LA don’t offer to do it of their own volition for article 6 purposes (and they might, as it is fast and cheap)? AND, how do you avoid having a period where there are no orders at all?

        Well, on an application to discharge the care order, section 37 of the Children Act applies, so the Court can make a s37 order AND an ICO, to tide the case over until the LA issue.

        I don’t think Q v Q will be appealed unless and until the President actually makes one of his orders that X pay the costs (X being LAA or MOJ or LA) as opposed to just threatening it. At the moment, no such order has been made. You can only appeal the order, not his remarks.

      • I see … I think, I’ll try to get my head round it further, later.
        I understand about the appeal or not, thank you

  4. I’m so glad about this judgement as we (Guardians and FCA’s) had a lengthy debate on this a few months ago, during a legal training day. A concern was raised as some Guardians/ FCA’s had cases where legal aid has been refused for those representing the child on the basis of the child’s savings being above the legal aid threshold … We felt strongly that a child should never have to pay legal costs irrespective of the type of proceedings (public or private).

    The case that started the debate was in fact a public law case where there was an application to discharge a care order, involved a child who had savings that had been accumulated as a result of being looked after (i.e. the LA saving money on the child’s behalf to be used once they leave care) and as a result of criminal compensation, the child’s savings were above the legal aid threshold and legal aid was reportedly refused. It was pointed out in Private proceedings if a child is made party to proceedings and they have substantial savings they too could be expected to pay towards their legal representation. The solicitor giving the training (playing devils advocate, I hope) suggested it was possibly right that a wealthy child should contribute towards their legal costs as opposed to the tax payer.

    We (FCA’s and Guardians) felt strongly that a child should never pay on the basis that
    1) they don’t ask to be a party to proceedings
    2) they are essentially the victim/ most vulnerable party (so why should they pay irrespective of their individual “wealth”).

    • I would entirely agree with those principles – but as I suspect Ian from Forced Adoption will tell you, your points 1 and 2 apply equally to P in the Court of Protection and that doesn’t stop their life-savings being spent on litigation they didn’t want, in order to thwart their autonomy / make best interests decisions on their behalf.

      I would like to say that I’d be surprised if the LAA ever took that stance on a real-life case, it being an abhorrent suggestion to make a child spend their compensation money on litigation; but sadly I might not actually be surprised if it were to happen in our current climate. How desperately sad.

  5. Thanks would you no of any one that could go thought all this mass with out all the gunf that I can understand more they have put allegations in to the judge and now taken them all out in the full trial in February and I’m non no wiser on any thing I say one thing and all I get from my solicitor is quotations of the law and not what happened from my point of view if there is a good in this world them I would like some one to look over all the paper work and them explained to me where in av gone rong you faithfully andrew

    [Have taken your name and email address out, in case it gets you in trouble for indirect identification by accident – Suesspicious]

  6. Pingback: Everyone really ought to read Re D | Children I...

  7. Would love to hear you loophole under LASPO (I’m a family law barrister)

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