Very grateful to Noel Arnold of Coram Legal Child’s Centre for alerting me to this. You may be aware that post LASPO, there will be parents who will have to represent themselves in court proceedings who would previously have got free legal representation.
The Courts have been concerned for some time about cases in which it would seem to be a breach of article 6 to make a parent represent themselves, and particularly where that would involve a parent cross-examining a child or their former partner about abuse. The provision in LASPO SHOULD capture those cases and grant exceptional funding where there’s a potential breach of human rights, but in practice it just isn’t happening.
The President has done a few of these cases and pushed the Legal Aid Agency to the brink, by saying that if they didn’t provide funding, he would order that the costs of legal representation should be paid by the Court. Up until now, the Legal Aid Agency have folded (but only in the cases before the President, which is not ideal)
Well now, in Re K-H (children) 2015, they didn’t fold, the Court made an order that a lawyer be provided and paid for by the Court service. The Lord Chancellor appealed it. And the Court of Appeal agreed that there was NO POWER to do that.
That leaves us all in a mess. The only thing that the Court can really do now is give a judgment that it would be a breach of article 6 to proceed – but where does that leave the case? Can the Court make a decision that the Court itself has breached father’s article 6 rights and make an order that the Court pay compensation? (allowing the money to then be used by the father to pay a lawyer?) Almost certainly not.
I can’t get the link to the judgment to work at present to chew over the detail, but here is the Children’s Legal Centre summary.
suesspiciousminds 
http://www.bailii.org/ew/cases/EWCA/Civ/2015/543.html
This seems to work: http://www.bailii.org/ew/cases/EWCA/Civ/2015/543.html
Hope this link to the Judgement works for you:
http://www.childrenslegalcentre.com/userfiles/Re%20K-H%20(Children).doc
http://www.bailii.org/ew/cases/EWCA/Civ/2015/543.html
Thank you. I have found the original post I did about this case https://suesspiciousminds.com/2015/01/05/court-service-to-pay-fathers-legal-costs-k-h/ and I remember being fairly rare amongst legal commentators in thinking that the Lord Chancellor SHOULD appeal that case and should win the appeal.
This wasn’t a LASPO case – the father had means that were over the financial limits. That didn’t mean that he could afford to pay a lawyer, but financial limits are something which can lawfully be set by a Government to filter out who should get free advice and who has to pay.
I wish that this hadn’t been the one that had gone from speculating that there might be a QvQ power and into actually using it. It was pretty inevitable that the appeal would be successful, and a stronger case on the facts might have had much more of a run in the Court of Appeal.
At the risk of coming across like Sir James Munby, I’ll quote myself
“I’m going to surprise you now. I think the Lord Chancellor should appeal this decision, and I think they should win the appeal.”
Reblogged this on | truthaholics and commented:
Slasher horror-film goes on and on: from Grayling’s swingeing cuts to adoptee Gove’s hatchet-jobs.
Where will it end? How ridiculous that an appellate court lacks jurisdiction to compensate victims of bad first-instance court decisions because both are emanations of the state and any rights-based approach would safeguard individual rights against the might of the state.
THE FIRST GROUND OF APPEAL:
THE COURT HAD NO POWER TO MAKE THE DECISION.