The President’s judgment in Re D (part 2) is up. The blog post about part 1 is here:-
Re D is the case in which parents had a care order at home, the LA removed under the Care order, there was no legal aid to challenge that decision despite father lacking capacity to instruct a solicitor. Then the LA lodged an application for a Placement Order, and as it was not joined up with care proceedings, there was no legal aid for THAT either.
Father’s legal team were not only acting for free, but they had to write the Official Solicitor an indemnity that if a costs order was made against the O/S they would pay it. Which is above and beyond.
So Part 2 is all about whether Legal Aid would be granted for the father under s10 LASPO (exceptional circumstances) and if not, what would happen.
Annoyingly, as keeps happening before the President, the Legal Aid Agency eventually blinked and granted funding, thus avoiding a judgment that might declare that s10 LASPO as being practiced is incompatible with article 6. So we don’t get a valuable precedent because there was no live issue to try. Grrrr.
However, note that the public funding granted here is still subject to an ongoing merits review (that’s NOT what happens in care proceedings – even if your case looks hopeless you are still entitled to have a lawyer fight it for you)
The next hearing took place on 2 December 2014. As can be seen from the Annex, the final piece of the legal aid jigsaw had fallen into place the day before. My order recited the position as follows:
“The Father has a substantive funding certificate to cover all work undertaken to date and up to a final hearing in both the s.39 CA 1989 and s.21 ACA 2002 applications. The Official Solicitor will, in the usual manner, conduct an ongoing review as to the merits of the case and this may effect whether the funding certificate will remain in place.
The Mother has a substantive certificate to cover the period up to the exchange of final evidence in respect of both the s.39 CA 1989 and s.21 ACA 2002 applications, whereupon it will be subject to a merits review and report to the LAA which will determine whether the certificate will be extended to cover the final hearing.”
So it could be that if all of the professional evidence is against the parents, they will have no legal aid to have lawyers to challenge and test that evidence at a final hearing, although what is at stake is adoption.
The President has strong views about this (though note that parents routinely don’t get lawyers to help them on applications for leave to oppose the making of adoption orders, which also feels pretty shabby to me)
I have set out the parents’ legal aid position in paragraph 14 above. It will be noticed that there is, as yet, no assurance that legal aid will be in place for the final hearing. This causes me some disquiet. Whatever view may be taken as to their prospects of success at the final hearing, a matter on which I express no views whatever, though recognising, as I have earlier noted (Re D, para 9), that the report of the independent social worker is unfavourable to the parents, I would view with the very gravest concern any suggestion that they should be denied legal aid on ‘merits’ grounds. Given the extreme gravity of the issues at stake and their various problems and difficulties, it is, as I said before (Re D, paras 3, 31), unthinkable that the parents should have to face the local authority’s application without proper representation. I repeat what I said in my earlier judgment:
“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.”
A parent facing the permanent removal of their child must be entitled to put their case to the court, however seemingly forlorn, and that must surely be as much the right of a parent with learning disabilities (as in the case of the mother) or a parent who lacks capacity (as in the case of the father) as of any other parent. It is one of the oldest principles of our law – it goes back over 400 centuries to the earliest years of the seventeenth century – that no-one is to be condemned unheard. I trust that all involved will bear this in mind.
The really sad thing about this case is encapsulated by the mother
- This is a case about three human beings. It is a case which raises the most profound issues for each of these three people. The outcome will affect each of them for the rest of their lives. Even those of us who spend our lives in the family courts can have but a dim awareness of the agony these parents must be going through as they wait, and wait, and wait, and wait, to learn whether or not their child is to be returned to them. Yet for much of the time since their son was taken from them – for far too much of that time – the focus of the proceedings has had to be on the issue of funding, which has indeed been the primary focus of the last three hearings. The parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane.
- I leave the last word to the mother, who, together with her husband, was present at the hearing on 2 December 2014 as at previous hearings. In an up-dating note dated 8 December 2014, her counsel, Ms Sarah Morgan QC and Ms Lucy Sprinz, said this:
“The mother was distressed following the last hearing that the child had not, as far as she had heard it, even been mentioned during the course of the submissions and discussions between Counsel (including her own) and the Court. It doesn’t, she remarked afterwards, seem right that so much time has to be taken up about the legal aid when it should be about D.”
They added, “Clearly she is right about that.” For my own part I merely pose this question: Is this really the best we can do?
Equally, it can’t be a decent solution to this situation that we have to get a case before the President before the Legal Aid Agency will blink and see sense. He can’t hear all of them.
The annexe is shocking- it has taken nine months of wrangling to sort out legal aid for something that most people would assume was automatic.
I completely agree with the position of the ALC (Association of Lawyers for Children) and ADCS (Association of Directors of Childrens Services) – parents facing an application for a placement order should get non-means, non-merits public funding regardless of when the application takes place.
…the ALC makes these two assertions:
- “Section 10 of LASPO is not being implemented so as to provide the safety net for the most vulnerable.
- Placement orders in particular should be included in those proceedings for which non-means-tested and non-merits-tested public funding is provided.”
- I draw attention to two of the points made by the ADCS. The first is that:
“From the perspective of a child on a journey to a permanent placement, ADCS would argue that the impact of a care order and a placement order are effectively equivalent; the same is true of their impact on the child’s parents. ADCS would therefore argue that equivalent checks and balances are required before either order is made. There appears to be no logic to support treating the orders differently simply because they have become decoupled in complex proceedings
In this case it would appear to ADCS that the application of the current legal aid rules has led to an injustice and could create a detrimental impact on the child in question. We would agree with the court that the State has created a problem by introducing these rules and should therefore find a means of resolving the problem.”
[For the benefit of pedants, yes, I know it is ‘squib’, but I like that particular eggcorn. Actually, this case isn’t quite as damp as it appeared when I first read it, because there’s a rap over the knuckles for LASPO here, although it doesn’t end up being the declaration of incompatibility that many were hoping for]
What is more shocking in these cases is the L.A’s never face the same issues when issuing the applications, despite the public purse ultimately paying for those applications could you imagine if the shoe was on the other foot.
I would say that the L.A in this case should have known the problems the parents would face, I am almost certain I responded by saying the same way previously on this case.
I am pretty sure with all the furore over s10 of LASPO one would have thought there should have been a Judicial Review just on that section by now.
Damp ‘squib’, it is. Unless hung out to dry (eg like family lawyers by the LAA) all ‘squid’ are damp.
Next Re D… Yes to JR; yes to pusilanimity of some family lawyers (not perhaps Withy King etc) in their failure to challenge LAA on LASPOA s 10; and yes to failure of lawyers to challenge the extent to which LAA are entitled to the variety of footling financial information case workers con lawyers that parliament required their poor clients to produce. Family lawyers surely must step up and challenge the Lord Chancellor, his decision-makers and their unlawful practices (imigration lawyers did it in Gudavanaciene). To do that lawyers please need truly to look carefuly at the big print (eg s 10); and then the variety of small regulation and guidance print subsiduary to that.
Hi David, I think faced with the combination of paperwork which takes hours to complete (for nothing) and a success rate of around 1% of applications, most firms threw in the towel on asking for s10 LASPO. That might be a mistake, and it might let the LAA off the hook (we want more and more applications made to test the LAA stance on them) but it is human nature, particularly in the current financial climate.
[I totally agree with your broader point outlined on your blog that the family law profession as a whole needs to be lobbying and finding test cases, a la Gudavanaciene]