RSS Feed

The LASPO safety net is a fig leaf

Oh, you’re going to like this one.

This decision from Mostyn J is quite involved, but significant. Even if you aren’t that interested in the very peculiar mechanics, what he had to say about LASPO (see title of the piece) is striking.

 

MG and JG v JF 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/564.html

 

To make it less alphabet soup, I’ll give people names (these are NOT their real names, I’ve made them up)

Jean Grey and Marie Grey were lesbian partners. They wanted to have a child and advertised for a man to provide gametes to make this happen. Jim Francis agreed to do this.

 

The child is born, and named John Fitzgerald Grey.

Jim Francis was having quite a lot of contact with little John, once or twice a month. This all changed when Marie Grey became pregnant with a second child (that donor thankfully isn’t involved in this case), and Marie and Jean stopped Jim’s contact.

 

Jim makes an application to court for contact. Jean and Marie learn that post LASPO they don’t qualify for legal aid. Jim on the other hand has some means and can pay privately.  [He could not be described as being wealthy – it is more comfortably middle class. His property is valued at £1.2 million and he earns £67,000 per year. Sufficient to pay his own legal fees – though probably not without a degree of wincing when he writes the cheques, but we are not in big money divorce territory here]

 

At some point, someone comes up with a cunning wheeze. An application can be made under Schedule 1 of the Children Act 1989 for some of Jim’s capital to be released to the child, and those funds can be used to pay for Marie and Jean’s legal costs.

That sort of thing isn’t that unusual in big money divorce cases where one person holds all of the assets – the Court order that they release some of the disputed funds to the other party to cover their legal costs and when the money is all divvied up at the end, that can be taken into account.

 

But this is a contact application – there isn’t going to be a share out of money at the end.  And as we know, the law in children cases is that each side pays their own costs, unless one party has behaved terribly badly. No suggestion of that here.

So this is in a sense, an application that Jim Francis uses his own money to pay for the other side to fight his application, even though he has done nothing wrong.  Unusual.

 

Firstly then, why shouldn’t Marie and Jean represent themselves, as envisaged by LASPO?

In this case it is my firm view that it is impossible for MG and JG to be expected to represent themselves having regard to the factual and legal issues at large. There would be a gross inequality of arms, and arguably a violation of their rights under Articles 6 and 8 of the European Convention on Human Rights and Article 47 of the European Charter of Fundamental Rights. So even though it cannot be said that JF has behaved reprehensibly or unreasonably he is the only realistic source of costs funding, subject to whatever contribution MG and JG should make from their own very limited resources. Some may say (and have said) that this is grossly unjust; I myself refrain from comment.

 

[I’m not quite sure it is accurate that Mostyn J refrains from comment. He doesn’t make direct comment, but I think the next section gives you a pretty clear idea of his thinking]

 

We add to the complexity that Jean and MArie split up with a degree of acrimony, and that the case also involved disputed about whether the child should be vaccinated.

Mostyn J is scathing here about the changes and the lack of foresight in seeing that cases are inevitably going to emerge where a lack of legal aid causes huge difficulties and unfairness.  This is a breathtaking and masterful dissection of the disaster that LASPO has been for individuals.

 

  1. With very few changes the government’s proposals were enacted in LASPO. A safety net was included by section 10(3)(b) which gave the Director of the Legal Aid Agency the discretion to award legal aid where “it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be …a breach [of Convention or EU rights].” As the President explained in Q v Q (No. 2) [2014] EWFC 31 at paras 6 – 8 the Lord Chancellor issued guidance concerning section 10(3)(b) which stated that it should be confined to “rare” cases which are of the “highest priority”. But this guidance has been quashed as legally defective by Collins J in Gudanaviciene & Ors v Director of Legal Aid Casework & Anor [2014] EWHC 1840 (Admin). That decision is under appeal.
  2. As the President explained in Q v Q the number of annual cases where the safety net has been applied can be counted on the fingers of two hands. In the year to March 2014 there were 9. Indeed between December 2013 and March 2014 one solitary case was caught by the safety net. The President stated at para 14 “if the scheme is indeed working effectively, then it might be thought that the scheme is inadequate, for the proper demand is surely at a level very significantly greater than 8 or 9 cases a year.” Thus it would be perfectly reasonable to describe this “safety net” as a fig leaf. MG and JG have not applied for exceptional funding under section 10(3)(b), no doubt taking the realistic view that any such application would be rejected summarily.
  3. Since the reforms have taken effect there have been an appreciable number of cases which have demonstrated that the blithe assumption in the consultation paper (that the parties’ emotional involvement in the case will not necessarily mean that they are unable to present it themselves, and that there is no reason to believe that such cases will be routinely legally complex) is unfounded. This was entirely predictable. The cases are Kinderis v Kineriene [2013] EWHC 4139 (Fam) (18 December 2013, Holman J); Re B (a child) (private law fact finding – unrepresented father) [2014] EWHC 700 (Fam) (27 January 2014, Judge Wildblood QC); Q v Q [2014] EWFC 7 (21 May 2014, the President); Q v Q (No. 2) [2014] EWFC 31 (6 August 2014, the President); Re H [2014] EWFC B127 (14 August 2014, Judge Hallam); Re D (A Child) [2014] EWFC 39 (31 October 2014, the President); CD v ED [2014] EWFC B153 (14 November 2014, Judge Hudson); Re D (A Child) (No. 2) [2015] EWFC 2 (7 January 2015, the President); and Re K & H (Children: Unrepresented Father: Cross-Examination of Child) [2015] EWFC 1 (5 January 2015, Judge Bellamy). This is a formidable catalogue. Each case focussed on the gross unfairness meted out to a parent in private law proceedings by the denial of legal aid. I do not think it would be right to say that these were examples of the operation of the law of unintended consequences since, as I say, the problems were so entirely predictable.
  4. Also of relevance is JG v The Lord Chancellor & Ors [2014] EWCA Civ 656 (21 May 2014) where the Court of Appeal held that the refusal of the (then) Legal Services Commission (LSC) to meet the cost of an expert report was unlawful. A district judge had ordered that the legally aided child, who was a party to the proceedings, should pay for that report. The order recorded that “the cost of the report to be funded by the child, the court considering it to be a reasonable and necessary disbursement to be incurred under the terms of her public funding certificate.” In the face of a dogged refusal to comply with this order by the LSC the district judge later ordered that:

    “The cost[s] of the expert to be funded by the child the court considering them to be a reasonable and necessary disbursement under her certificate and the purpose of the report is solely to establish what arrangements are in her best interests. Furthermore, the court has carried out a means assessment of both parents and found that they are unable to afford any part of these fees. In reaching this conclusion the court considered the provisions of section 22(4) of the Access to Justice Act 1999.”

    Notwithstanding this ruling the Legal Aid Agency (as the LSC had become) persisted in its refusal, and judicial review proceedings had to be commenced. The Legal Aid Agency actually succeeded at first instance but in the Court of Appeal, despite elaborate and trenchant argument by it and by the Lord Chancellor, who had intervened, its decision to refuse to comply with the order and to fund the report was held to be unlawful.

  5. In Lindner v Rawlins [2015] EWCA Civ 61 the Court of Appeal heard an appeal by an unrepresented husband against a refusal to order police disclosure in defended divorce proceedings. The wife was neither present nor represented. Aikens LJ observed that the appeal was technical and unusual and that the husband could not be expected to have mastered this area of the law in order to be able to present his appeal in a way that assisted the court. He bemoaned the lack of the legal assistance of counsel that the court should have.
  6. I need only cite a few of the judicial observations. In Kinderis v Kineriene Holman J described the position in which the unrepresented mother in Hague proceedings found herself as follows:

    “The present procedure operates in a way which is unjust, contrary to the welfare of particularly vulnerable children at a time of great upheaval in their lives, incompatible with the obligations of this state under Article 11(3) of the [B2R] regulation, and ultimately counter-productive in that it merely wastes taxpayers’ funds”

    In Re H Judge Hallam was dealing with an unrepresented mother with speech, hearing and learning difficulties. An official of the Legal Aid Agency stated that there would be no breach of convention rights were she to remain unfunded. Judge Hallam stated “I find that statement astounding”. In Re D the unrepresented father, who lacked capacity, had made an application to revoke a care order; the local authority had applied for a placement (for adoption) order. After heavy pressure from the President some legal aid was eventually awarded. At para 31(vi) of his first judgment the President stated:

    “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?”

    At para 21 of his second judgment he stated that “the parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane.”

  7. In Lindner v Rawlins at para 34 Aikens LJ stated:

    “Yet again, the court was without any legal assistance and had to spend time researching the law for itself then attempting to apply it to the relevant facts in order to arrive at the correct legal answer. To do the latter exercise meant that the court itself had to trawl through a large amount of documents in the file. All this involves an expensive use of judicial time, which is in short supply as it is. Money may have been saved from the legal aid funds, but an equal amount of expense, if not more, has been incurred in terms of the costs of judges’ and court time. The result is that there is, in fact, no economy at all. Worse, this way of dealing with cases runs the risk that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it.”

  8. These are powerful criticisms. The President suggested that if the Legal Aid Agency would not award legal aid to an unrepresented parent facing serious allegations then the court might have to do so from its own budget. In Re K & H that was the course proposed. The Lord Chancellor instructed leading counsel who bravely argued that the President’s analysis of the existence of this power was “plainly wrong”. Judge Bellamy disagreed and awarded representation from the court budget. The Lord Chancellor is appealing that decision. It can safely be assumed that the criticisms I have recounted have fallen on deaf ears. Based on the decisions I have cited, including no fewer than four from the President himself, it can be said that in the field of private children law the principle of individual justice has had to be sacrificed on the altar of the public debt. And based on the observation of Aikens LJ, it can reasonably be predicted that the phenomenon of the massive increase in self-representation will give rise to the serious risk of the court reaching incorrect, and therefore unjust, decisions.

 

Just in case you missed it, yes, that was a High Court judge saying that in private family law, the principle of individual justice has been sacrificed on the altar of public debt. And that LASPO is likely to lead to incorrect and unjust decisions.

That noise you can hear just to your leftmy applause echoing.

So, with legal aid not being available, and it being unfair for Jean and Marie to act in person, that was really only leaving Jim Francis as a source of funding.

How much money were we looking at?

  1. Decision
  2. In my judgment JF should pay 80% of each of the claims of MG and JG. Therefore he will pay MG £12,202 and JG £8,394. In addition he will pay 80% of all future professional costs in respect of therapeutic work and MG and JG will each pay 10% of such costs.
  3. Thus MG will have to find £3,050 and JG £2,098 and they will each have to find 10% of the future costs of therapeutic work. In my judgment they cannot reasonably or realistically be expected to find more. By contrast, I am satisfied that JF can find, without undue hardship, the share with which I have shouldered him.
  4. It could be said that it is grossly unfair that JF should have to pay now £20,596 plus 80% of the future therapeutic costs up to the IRH. But that is where the government has left him. It is a sorry state of affairs.
  5. This leaves the costs of expert evidence which will come into being between now and the IRH. The consent order provides for the educational psychologist to answer further questions and for the psychologist to file an addendum report. In my judgment these should be paid for by JFG and in my opinion such fees are a reasonable charge on his legal aid certificate, for the following reasons.
  6. In JG v The Lord Chancellor & Ors Black LJ explained at para 92 that when read with FPR rule 25.12(4)(a) (which provides that the court may give directions about the expert’s fees and expenses) rule 25.12(6) (which provides that provides that unless the court directs otherwise, the relevant parties are jointly and severally liable for the payment of the expert’s fees and expenses) is not intended to be prescriptive and merely establishes a default position for financial responsibility for the expert in the event that the court does not direct otherwise. She stated: “I do not see it as setting up a ‘normal rule’ that the cost is to be apportioned equally.”
  7. She further explained at para 93 that in order not to fall foul of section 22(4) of the Access to Justice Act 1999 that:

    “It is necessary to ask what order the court would make in its discretion on the particular facts of that case, leaving aside any resources problems. The answer may not uncommonly be an order for equal apportionment of the costs but that cannot be assumed. It may be that a full consideration of the circumstances of the case produces the result that the publicly funded party should be paying a greater share of the costs in any event, quite irrespective of any financial difficulties that the other parties may have in sharing the cost of the expert. In such circumstances, section 22(4) does not prevent the court from making an order accordingly, because the order is in no way affected by the fact of public funding.”

  8. I do not think that the imaginary scenario that I have to address assumes that everyone is of means. Rather, it assumes the facts as they are with the sole exception that the child is not legally aided but is funded from another source, such as his own means or the means of a relative of substance. Were that the position I would have no hesitation in making an order that JFG bear the costs of these further reports given that MG and JG do not, on my findings, have the means to do so, and given the burdens that I have already imposed on JF. Further, and in any event, it is just and reasonable that JFG bears these costs whether or not he is legally aided because at the end of the day these fees are being incurred primarily for his benefit.

 

 

And again, you read that right, that is a High Court Judge making a decision and saying that some could describe that decision as being grossly unfair but that this is the position that the Government have put this man in.

I partially wondered whether Mostyn J made this decision with a view to it being appealed and having the Court of Appeal rule that it would instead be right for the public authority (the Court) to fund the costs – at the moment, we only have the President’s hints that this is a route and His Honour Judge Bellamy doing it.  A Court of Appeal authority would be much more powerful. I’m not so sure though – an appeal (particularly paying the other sides costs) would run to more than this sum of money, and I think it is unlikely that Jim Francis would be tempted into appealing.

It is, as Mostyn J has said, a sorry state of affairs.

 

It makes uncomfortable reading for donors, or in fact any party in private law proceedings who is earning that sort of money (£67,000 is a lot, but it is not the riches of Croesus; it could easily bite on people who would much rather not spend half of their gross annual income on one court case)

 

 

 

 

 

 

Advertisements

About suesspiciousminds

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

10 responses

  1. Jim should have dropped the court case and tried having a child with a woman who fancied him !

    • By Mostyn’s reasoning that would not have made any difference if the women had been one that had fancied him and had a child by him, who had then gone to deny him contact with the child (like many do).

      If this judgement stands it will be interesting to see your response when a female is forced to pay the costs of her ex in a private law case.

  2. Forced Adoption Priceless!

  3. (1) I very much doubt Mostyn J had power to do this. Costs awards are in the discretion of the court; but decsisions are on funding are entirely based on statute (eg interim maintence or lump sums in ChAct Sch 1 cases).

    (2) Did no one tell him teh Gudaviciene appeal had been dealt with, more or less successfully. Having doubted that Art 6 rights were covered for teh women, he should have gone on to tell them to issue JR and a HCt judge deal with their case on JR under LASPOA s 10(3) (following the arguments in Guda).

  4. Another reason for a single man to consider his mother as a gestational surrogate.

    I think Mostyn is really pushing it here, its not for the applicant to behave in a manner that does not violate human rights, that onus is on the state.

    What would Mostyn have done if the applicant did not have the means to pay for the others costs or even their own.

    • Part of me thinks that he did it to promote outrage, with the hope that the LAA might be pressured into running s10 LASPO properly. But it really doesn’t seem concievable to me that a father who earns £67,000 a year would be made to pay nearly half of that in child maintenance (which is what this has been dressed up as)

      If I was the father in this case, I’d appeal. If I was advising him – well, that’s a bit different. It becomes more about the costs of appeal in that situation and whether he would spend more than £30,000 in an appeal.

      • Mostyn is not very impressed by the government’s actions (with regard to legal aid),so I would agree that he may want his judgement appealed (the father certainly has the money and motive to do so).

        If the child was in his teens I do not think that it should be the father’s first option (although personally I would like him to appeal), but the child is only nearly 8 so I would be telling the father that there is a possibility that it could be in his interests (financially) to appeal because there could be future proceedings throughout the child’s childhood. Also by appealing it would show the other parties that he means business and the judge.

        If you take into account that the father already pays £10,296 in “child” support,which is a very considerable amount for a sperm donor/very part time “coparent” (monthly/bimonthly contact) , he really has had a bashing in the court.

        There is a tiny part of me though that thinks did Mostyn look at the “child” support figure and think this father will be accommodating (with his judgement), but that’s balanced out at least a little by the fact that the father obviously was not impressed by the non-disclosure/shuffling of the mother’s finances.

        The mother has an income of £37,000 and is not working (she is doing ok for her self, £15,384 is from “child” support), after a quick calculation a mother on income support with 2 children would be getting about £11,500 (including child benefit and tax credits) plus housing benefit, I think this mother could afford to pay her own costs.

        When the CSA first came into existence the first formula used to calculate “child” support basically left the fathers with an income that was equivalent to a single person’s allowance of income support plus rent (At the time it left them with about £30 a week).

        If judges are going to put the costs onto those with the “only” resources available, then I think they are really going to need to explain exactly how they arrive at the figures.

    • I suppose the answer to the questions in the final sentence of Ben Mosley’s post is nothing, since the case would not have got to Justice Mostyn at all.

      There’s an interesting compare and contrast with the wasted costs case; unless one or the other is overturned it will plague students for years to come…

  5. Pingback: The LASPO safety net is a fig leaf | Legal In G...

  6. Shirley Buckley

    My experience oflegal aid is “interesting” Mr Justice Charles judgment Sept/Oct 2007.Re the Official Solicitor acting as my son’s litigation friend. “In a recent decision of my own in exercising this jurisdiction, leading counsel theninstructed by the OS accepted,in my viewproperly, that the product of the procedure generally adopted in this case was a SHAMBLES. In that case I gave some guidance as to how the parties should consider preparing cases of this type once the general exchange of affidavit evidence had taken place…………whart seems to be ignored in this jurisdiction is THE IDENTIFICATION OF THE NEED TO PROVE UNDERLYING FACTS TO ENABLE THE COURT TO MAKE A PROPERLY INFORMED DECISION AS TO WHAT PROMOTES THE BEST INTERESTS OF AN INDIVIDUAL BASED ON A FACTUAL PREMISE AND REASONING FROM THOSE FACTS PROVED TO THE CIVIL STANDARD…………Also when the case began there was no care plan other than one contained in a mass of material of a descriptive nature………..etc etc.The case then continued until 2008 and up until the present day without one mention of Martin’s rights.

%d bloggers like this: