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LASPO and article 6 – a huge case

The President has given his judgment in Q v Q, and it is a helluva read.

If you want the “Too Long: Didn’t Read” version – in a case where the Judge concludes that it is necessary for a party to be legally represented or to have the costs of an expert paid for and that failure to do so would be a breach of article 6, and the Legal Aid Agency refuse to use their power under s10 LASPO to grant exceptional funding,  the Court would be entitled to order that Her Majesty’s Court Service pay for the legal representation.

 

The original Q v Q I wrote about here :-  https://suesspiciousminds.com/2014/06/09/q-v-q-an-impasse/

 

The facts broadly are that a father was seeking contact with his child, an expert assessment as to future risk had been obtained, he disagreed with the conclusion and wanted to challenge it by way of cross-examination, but wasn’t in a position to do that himself, it was a task that would have been beyond him.  At the end of the judgment, the President floated the idea that if the Court considered that a party’s article 6 right to a fair trial was being breached, and the Legal Aid Agency wouldn’t pay for representation, then the Court Service might well have a duty to.  He didn’t finally determine that, giving the Ministry of Justice a chance to intervene and make representations as to why not  (they didn’t take that chance, because they are not the brightest crayon in the box)

 

The President also bundled up with Q v Q two private law cases where serious sexual offences were being alleged against the father and the Legal Aid Agency’s refusal to grant exceptional funding was going to place the Court in a position where the father might have to cross-examine in person the alleged victim. One of those,  D v K and B 2014   I wrote about here https://suesspiciousminds.com/2014/03/14/equality-of-arms-d-v-k-and-b-2014/

 

The judgment in Q vQ 2014 is here

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/31.html

 

I have not been, over the last few years, the biggest flag-waver for the President – many of my grumbles are about his performance as a reforming administrator rather than a Judge; but he delivers for justice here.  And puts a target on his head, because this won’t be a popular decision in the Ministry of Justice, who are probably in a room now with a flip chart drawing up battle-plans and watching old episodes of  Judge John Deed to try to pick up some tips for when the MOJ are at war with a ‘rogue’ Judge.

 

Let’s have a quick look at why the MOJ, when placed on notice that the President was contemplating making a decision that would in effect be – “either the LAA write a cheque or HMCS write a cheque, but a cheque’s going to get written”, decided not to get involved

I decided to invite the Secretary of State for Justice (para 20) to:
 

“intervene in the proceedings to make such submissions as are appropriate in relation, in particular, to the argument that in a situation such as this the expenditure which is not available from the Legal Aid Agency but which, in the view of the court, if it be the view of the court, is necessary to be incurred to ensure proceedings which are just and fair, can be met either from the Legal Aid Agency by route of the other certificate, the mother’s certificate, or directly at the expense of the court.”
On 25 June 2014 I received a letter from Shailesh Vara MP, Parliamentary Under-Secretary of State for Justice in the Ministry of Justice. After an opening paragraph the letter reads as follows:
 

“I am very grateful for the opportunity to intervene but the Ministry of Justice does not propose to do so in this case.
Ministers have no right or power to intervene in individual legal aid funding decisions made by the Director of Legal Aid Casework. The independence of the Director is an important statutory measure, which ensures impartiality in decision making. From the information recorded in your judgment, it is clear that the father in this case failed to satisfy the statutory merits criteria required to access funding. The merits test is a fundamental and long established part of the legal aid system, and ensures that limited public money is focussed on sufficiently meritorious cases and is not available in cases lacking sufficient merit. It is clearly established that it is legitimate for the Government to focus limited public resources through applying a merits test.
As you record in your judgment, there is expert evidence in the case (one report plus addenda commissioned by the father and one plus addendum commissioned jointly by the mother and the father) which set out unequivocally that the son would not be safe in his father’s presence and that at the moment there should be no contact between the father and the son. There have always been litigants in person in family proceedings, whether because individuals do not qualify for legal aid or choose to represent themselves, and the Courts have been able to resolve such proceedings justly and fairly.
I agree with you that further delay should be avoided in this case and, in the absence of a mechanism for funding the appearance of the experts or representation for the father, you will have to decide this issue in the absence of the cross examination you refer to in your judgment.”

 

So, we’re not coming, and if you can’t find a lawyer to do the cross-examination for free, then you’ll just have to decide the case without any cross-examination.

 

Do you remember in 1984 how Orwell talks about the Ministries in Airstrip One being named for the opposite of what they really do? So their Ministry of Peace was really a Ministry of War and so on?   Ladies and Gentlemen, I give you the Ministry of Justice.  Bravo, bravo.

 

The President goes through the various options, looking chiefly at the cases involving an allegation of rape in private law proceedings which is challenged and where the ‘accused’ has no lawyer.  In short they are ‘pro bono’,  the Guardian conducting the cross-examination, the father doing it in person or the Judge doing it and shows why each are insufficient and flawed.

 

He then establishes that as a result of European jurisprudence, notably  Airey v Ireland, and the Human Rights Act, the Court itself is bound by article 6 and fair trial and would itself be breaching the person’s right to a fair trial if it were to conduct the trial in a way that it considers to be unjust

 

46. The court is a public authority for the purposes of the Human Rights Act 1998 and is therefore required, subject only to section 6(2), to act in a way which is compatible with Articles 6 and 8 of the Convention. So far as is material for present purposes Article 6(1) provides that “In the determination of his civil rights and obligations … , everyone is entitled to a fair … hearing within a reasonable time”. Article 8, which guarantees “the right to respect for … private and family life”, also affords significant procedural safeguards in relation to the court process. As the Strasbourg court said in McMichael v UK (1995) 20 EHRR 205, para 87, “the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8.”
 

47. It is necessary also to have regard to Article 47 of the European Charter of Fundamental Rights:
 

“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice.”
I do not take up time considering whether this is applicable in cases such as those before me. In any event, it is not clear that it creates any greater right than arises under Articles 6 and 8 of the Convention: see Gudanaviciene and others v Director of Legal Aid Casework and another [2014] EWHC 1840 (Admin), paras 36-37.

48. Article 6 guarantees the right of “practical” and “effective” access to the court. In the case of a litigant in person, the question is whether, without the assistance of a lawyer, the litigant will be “able to present her case properly and satisfactorily”: Airey v Ireland (Application no 6289/73) (1979) 2 EHRR 305, para 24. In that particular case, the court held that Ireland was in breach of Mrs Airey’s Article 6 rights because it was not realistic in the court’s opinion to suppose that, in litigation of the type in which she was involved, she could effectively conduct her own case, despite the assistance which the judge would afford to parties acting in person. In DEB v Germany [2011] 2 CMLR 529, para 46, the CJEU summarised the Strasbourg jurisprudence in this way:
 

“Ruling on legal aid in the form of assistance by a lawyer, the ECtHR has held that the question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent himself effectively.”

49. Mantovanelli v France (Application no 21497/93) (1997) 24 EHRR 370, indicates the significance of the right to an adversarial hearing guaranteed by Article 6 specifically in the context of an expert’s report which is “likely to have a preponderant influence on the assessment of the facts by [the] court.”

 

 

The President also looked at section 31 G (6) of the  amended Matrimonial and Famly Proceedings Act 1984

 

33….section 31G(6) of the Matrimonial and Family Proceedings Act 1984, set out in Schedule 10 of the Crime and Courts Act 2013, which came into effect on 22 April 2014:
 

“Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to –
(a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and
(b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.”

 

And in conclusion

 

75…does section 31G(6) operate to confer on a judge of the Family Court power to forbid a party who wishes to conduct his own case from examining or cross-examining a witness? Again I have heard no sustained argument, but my inclination is to think that the answer is, no it does not, for principle suggests that such an important right is only to be cut down by express words or necessary implication, and neither is very obviously to be found in section 31G(6): see again General Mediterranean Holdings SA v Patel and Another [2000] 1 WLR 272. As against that, I can see the argument that there may be cases where to expose the alleged victim to cross-examination by the alleged perpetrator might engage the alleged victim’s rights, whether under Article 8 or Article 3, in such a way as to impose on the court an obligation under the 1998 Act to prevent it, so that in such a case section 31G(6) has to be read as giving the court the appropriate power to do so.
 

76. The second thing which is unclear is this: what, in contrast to the word “put” in section 31G(6), do the words “cause to be put” mean? When section 31G(6) provides that in certain circumstances “the court is to … put” questions, that must mean questioning by the judge or magistrate. In some – probably many – cases that will be entirely unproblematic. But in cases where the issues are as grave and forensically challenging as in Re B and Re C, questioning by the judge may not be appropriate or, indeed, sufficient to ensure compliance with Articles 6 and 8. There is, in my judgment, very considerable force in what Roderic Wood J and Judge Wildblood said in the passages in their judgments (respectively, para 24 and paras 6(iii)-(v)) which I have already quoted.
 

77. The words “cause to be put” must, in contrast, contemplate questioning by someone other than the judge. Now that someone else might be an advocate whom the court has managed to persuade to act pro bono. It might be the guardian, if there is one, or the guardian’s advocate. But there are, as both Roderic Wood J and Judge Wildblood understandably pointed out, great difficulties in expecting the guardian or the guardian’s advocate to undertake this role – difficulties which were expounded also in the argument before me. I agree with what Judge Wildblood said (para 6(ix) quoted above). The point applies with equal force in the circumstances of both Re B and Re C.
 

78. What then is the court to do if the father is unable to pay for his own representation and “exceptional” legal aid is not available?
 

79. In the ultimate analysis, if the criteria in section 31G(6) are satisfied, and if the judge is satisfied that the essential requirements of a fair trial as required by FPR 1.1 and Articles 6 and 8 cannot otherwise be met, the effect of the words “cause to be put” in section 31G(6) is, in my judgment, to enable the judge to direct that appropriate representation is to be provided by – at the expense of – the court, that is, at the expense of HMCTS.

 

 

Now, some caveats  – the President is careful to say that these were cases with particular characteristics, each involving allegations of sexual offences and two involving allegations of rape, and that he had been looking at these cases in particular not s10 LASPO in general.   And also we need to bear in mind that  (a) the LAA might appeal this decision, as they are threatening to do with Gudanaviciene and others v Director of Legal Aid Casework and another [2014] EWHC 1840 (Admin),  and (b) hardly anyone at the LAA seems to have taken on board Gudanaviciene so far, as can be seen from the Smackdown judgment from HH Judge Bellamy I wrote about yesterday.     The criminal bar were all cock-a-hoop about the  Op Cotton judgment and the rug was pulled out from under them by the Court of Appeal.

 

Here are the President’s own caveats   (and if you are a Local Authority lawyer or budget-holder note the chilling implications of the LA funding intervenors or grandparents to litigate against them)

 

Three caveats

In this judgment I have been concerned only to consider the problems that may arise in private law cases. I have therefore not had occasion to consider any further the point I made in Q v Q (para 18), where I suggested that “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.” That is a matter for another day.
 

I have concluded that there may be circumstances in which the court can properly direct that the cost of certain activities should be borne by HMCTS. I emphasise that (the provision of interpreters and translators apart) this is an order of last resort. No order of this sort should be made except by or having first consulted a High Court Judge or a Designated Family Judge.
 

I emphasise also that the allegation in each case is one of sexual assault, in two of the cases an allegation of rape. It may be that a similar approach is appropriate in cases of serious non-sexual assault. It may be that it will not be appropriate in less serious cases. I express no concluded views, beyond drawing attention to the trite observation that everything will, in the final analysis, depend upon the particular facts of the specific case.
 

Concluding observations

The Ministry of Justice, the LAA and HMCTS may wish to consider the implications. That is a matter for them. For my part I would urge the early attention of both the Children and Vulnerable Witnesses Working Group and the Family Procedure Rules Committee to those aspects of the various matters I have canvassed that fall within their respective remits.

 

In both of the live cases, the Judge gave the Legal Aid Agency one last chance to see sense and grant the funding under LASPO, but gave the clearest of indications that to proceed without representation would be an article 6 breach and that the Court would have to consider its own duty to fund such representation.

 

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Q v Q – an impasse

 

You may not be aware (it depends if you spend too much time online), that on the internet QQ in effect means stop whining, or crying about something (the Q’s looking like a pair of eyes with tears coming out of them)   – if you say that someone is QQ-ing, it means that they are whining like a child about something.    [ it comes up a lot]

 

In Q v Q 2014, the President tackles what’s been a long-standing problem in family law proceedings, particularly family law. And brings tears to the eyes of the Legal Aid Agency, Her Majesty’s Court Service and our beloved minister Chris Grayling. QQ indeed.

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/7.html

 

For many years now, the Legal Aid Agency, under its various guises, has had a policy that they will withdraw public funding from someone who has legal aid (free legal representation) if there is an independent report which is heavily against them. Back when I was doing private law, this quite often used to be the CAFCASS report, and you’d end up in a position where your client’s legal aid would be pulled two days before a final hearing because the CAFCASS report was very damning.

 

Of course, the report is at that point untested evidence – for the Legal Aid Agency to presume that just because on paper the CAFCASS officer is against your client, there would be no prospect of getting them to change their mind or getting the Court to disagree with their conclusions is presumptuous in the extreme. If all the Court did was agree with what the CAFCASS report said on paper, then we wouldn’t need Judges at all, and CAFCASS could be the investigators and arbiters of final outcomes.   [Indeed, on a few such cases I recommended my client for free, and got a favourable decision for them]

 

That’s not a new thing, but in this case, the father was publicly funded and an expert was instructed (it was his expert) and the expert was heavily against him. His funding was pulled.

 

The father was therefore appearing in person, and requiring an interpreter. He wanted to be represented and he wanted to challenge the expert report. The mother, who was represented, invited the Court to dismiss his application and make a section 91(14) order prohibiting him from making further applications without leave of the Court.

 

The Court were unhappy about the impact of proceeding without representation for the father on his article 6 and article 8 rights, and mooted a series of possible solutions, before adjourning the case and inviting the Legal Aid Agency and Ministry to intervene to discuss those possible solutions.

 

 

In the circumstances, what I propose to do is this: I propose to adjourn this matter for, I emphasise, a short time, inviting the Ministry of Justice – or it may be the Secretary of State for Justice or it might be the Minister for the Courts and Legal Aid – to intervene in the proceedings to make such submissions as are appropriate in relation, in particular, to the argument that in a situation such as this the expenditure which is not available from the Legal Aid Agency but which, in the view of the court, if it be the view of the court, is necessary to be incurred to ensure proceedings which are just and fair, can be met either from the Legal Aid Agency by route of the other certificate, the mother’s certificate, or directly at the expense of the court.

 

 

I appreciate that this is a case in which, as Miss Spooner points out, there have already been too many adjournments of supposedly final hearings. I appreciate it is a case which has been going on for the best part of four years, which is depressing to say the least. And I am very conscious of the fact that the mere existence of the proceedings, and they must seem to the mother and her son to drag on interminably, is having a significant impact both on the mother and also on the parties’ son. Factoring that in as I do, it does seem to me that some further, but limited, delay is inescapable if I am to do justice not merely to the father but, as I have emphasised, also to the parents’ son.

 

 

I shall accordingly, in terms which I will draft, adjourn this matter so that the relevant ministry can intervene if it wishes to and on the basis that if it does not I will have to decide the issues I have canvassed without that assistance. I will reserve the matter to myself. I will direct that the hearing takes place as soon as it possibly can after the forthcoming short vacation. I would hope that the hearing can take place in front of me in June.

 

 

This is about nine years too late for the general principle, and a year late for the LASPO position which left almost all parents in private law cases unrepresented (I suspect that the father’s rights movements would also say that as a result of relative incomes, there were a huge number of cases in which fathers had to represent themselves because they had slightly too much money for legal aid representation but not nearly enough to pay privately, and I have some sympathy with that position)

 

It is welcome anyway, even if it is late.

 

The President helpfully gives people a valuable little crib-sheet in case they WERE asking the Legal Aid Agency to grant legal aid in the s10 LASPO exceptional circumstances

 

Putting it in the language of FPR 2010 1.1, the court is required to deal with this matter “justly” and by ensuring “so far as is practicable” that the case is dealt with “fairly” and also “that the parties are on an equal footing.” That is the obligation of the court under domestic law. It is also the obligation of the court under Articles 6 and 8 of the European Convention. Despite what Miss Spooner says, I am left with the strong feeling that I cannot deal with the matter today justly and fairly by acceding to her submission.

 

As I have said, the domestic obligation on the court is to act justly and fairly and, to the extent that it is practicable, ensure that the parties are on an equal footing. In the well-known case of Airey v Ireland (Application no 6289/73) (1979) 2 EHRR 305, the European Court of Human Rights held as long ago as 1979 that there could be circumstances in which, without the assistance of a legally qualified representative, a litigant might be denied her Article 6 right to be able to present her case properly and satisfactorily. In that particular case, the court held that Ireland was in breach of Mrs. Airey’s Article 6 rights because it was not realistic in the court’s opinion to suppose that, in litigation of the type in which she was involved, she could effectively conduct her own case, despite the assistance which the judge affords to parties acting in person.

 

 

Mantovanelli v France (Application no 21497/93) (1997) 24 EHRR 370, a judgment given by the court in March 1997, indicates the significance of the right to an adversarial hearing guaranteed by Article 6 specifically in the context of an expert’s report which was “likely to have a preponderant influence on the assessment of the facts by [the] court.”

 

 

I mention those cases merely as illustrative of the kind of issues which arise in this kind of situation. I emphasise I do so without expressing any view at all as to whether, in the circumstances I am faced with, unless there is some resolution of the present financial impasse, there would be a breach of either Article 6 or Article 8.

 

 

 

You may have noticed that I haven’t come on to the facts of the case yet, which is not my usual approach. You may be wondering what the facts of this case are that led to the President being so troubled about the father’s human rights (especially given that there was no such intervention on the D v K case where a father was accused of rape by the mother in private law proceedings and not given legal aid, leaving him in the position of facing those very serious allegations without a lawyer and the mother in the position of being cross-examined by the father directly, something which would be illegal if it happened in a criminal trial http://www.bailii.org/ew/cases/EWHC/Fam/2014/700.html   So it must be something worse than that?)

 

 

Well, this, I’m afraid is one that the Daily Mail would exhaust the entireity of the “Outrage” section of Roget’s Thesaurus

 

The father is a convicted sex offender, having convictions for sexual offences with young male children, the second of which was committed during the currency of these proceedings.

 

 

That’s right – the man who the President has gone to the wall for, to defend his human rights, to single out and say “This is the case where I must defend the father’s rights” is a convicted paedophile seeking to have contact with his seven year old son.

 

[That, sadly, is the point of human rights, that they are universal and apply to the most deserving and those who the general public might regard as undeserving and beyond the pale. It isn’t great PR for those who support human rights – including myself, when it is cases like this that stir our courts into upholding rights. It does seem from time to time that the more unsavoury you appear to be, the more thought the Court give to your rights. I hope it only seems that way.

 

If you were to hold a national referendum on whether this man, a convicted paedophile, should get to see his seven year old son, I don’t imagine that it would be a finely balanced result. I don’t think bookmakers would be giving very good odds on “No” ]

 

 

 

 

Back to the legal debate, the President felt that just because the report was against the father that would not determine the matter

 

Tempting though it is to think that the father’s case is totally lacking in merit, it does seem to me, despite everything Miss Spooner has said, and recognising the constraints which may be imposed on cross-examination by the fact that, in part, challenge on behalf of the father would be to his own expert, I am unpersuaded that there are not matters in these reports which could properly be challenged, probed, by someone representing the father.

 

 

For example, a perfectly proper line of cross-examination of JD might be along these lines, “In part at least, your analysis of the risks that the father poses to his son, as opposed to other children, is based upon the account you have had from the mother of what went on in the family home.” It would seem, bearing in mind the language of JD’s report, that the answer could only be, “Yes.” The next question then might be, “Suppose for the sake of argument that the true picture at home was not what the mother says but a very different picture presented by the father. Just suppose that. Would that affect your opinion?” I use that only by way of illustration of a wider point that could be made in relation to these reports. That seems to me to be a proper and appropriate line of cross-examination.

 

 

My problem and ultimately Miss Spooner’s problem is that it is completely a matter of speculation as to what JD’s answer would be to the last question I formulated. The answer might be, “It does not make the slightest difference at all because of X, Y, Z”, in which case the father’s case might evaporate. It might be, “Well, yes, that might make a difference.” The point is we simply do not know

 

 

 

[If you are thinking at this point – well all of that seems like it could apply to ANY witness who was against you, and thus ANY case –mmmmm, yes, I agree. This could be a very critical case for the Government and LASPO. If they don’t take it seriously, it could put a serious hole in their policy about legal aid]

 

 

What were the Court’s possible options to resolve this unthinkable impasse?

 

Assuming that public funding in the form of legal aid is not going to be available to the father, because his public funding has been withdrawn and an appeal against that withdrawal has been dismissed, and on the footing that, although the father has recently gained employment, his income is not such as to enable him to fund the litigation, there is a pressing need to explore whether there is any other way in which the two problems I have identified can be overcome, the first problem being the funding of the attendance of the experts, the second being the funding of the father’s representation

 

 

There may be a need in this kind of situation to explore whether there is some other pocket to which the court can have resort to avoid the problem, if it is necessary in the particular case – I emphasise the word “necessary” – in order to ensure a just and fair hearing. 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 such as the present where one party is publicly funded, because the mother has public funding, but the father does not, 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 fundsThere may be a need in this kind of situation to explore whether there is some other pocket to which the court can have resort to avoid the problem, if it is necessary in the particular case – I emphasise the word “necessary” – in order to ensure a just and fair hearing. 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 such as the present where one party is publicly funded, because the mother has public funding, but the father does not, 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.

 

 

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 in justice not merely to the father but I emphasise equally importantly to the son, as well as in the wider public interest of other litigants in a similar situation to that of the father here. I emphasise the interests of the son because, under our procedure in private law case like this where the child is not independently represented, fairness to the child can only be achieved if there is fairness to those who are litigating. There is the risk that, if one has a process which is not fair to one of the parents, that unfairness may in the final analysis rebound to the disadvantage of the child

 

 

 

 

If you have ever watched a submarine movie (and if you haven’t, you have wasted your life to date), you will be familiar with the sequence where disaster strikes, water breaches the hull and red lights go on and a siren blasts “Arooogah Aroogah” for the next twenty minutes of the film, where men in crewneck jumpers and/or bellbottoms use wrenches on pipes and doors burst open and water pours in.

 

That submarine disaster sequence is  pretty much what the scene at Her Majesty’s Court Service would be like when they read this line from the President

 

 

. 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

 

 

What the President is saying there is, if a situation arises in which a party’s human rights would be breached by having to conduct litigation without a lawyer and the Legal Aid Agency won’t pay, it might have to come out of the Court’s budget, otherwise the Court would be breaching the party’s human rights.

 

Aroogah! Aroogah!

 

 

In private law, if someone is going to have to pay for legal representation to prevent a breach of article 6 and article 8, the options are basically limited to the Legal Aid Agency or the Court (either way, it is coming out of Mr Grayling’s budget)

 

Aroogah! Aroogah!

 

Luckily, we know from Mr Grayling’s comments about the completely opaque terrorism trial of AB and CD that “We must trust the Judges” and on that basis, I’m sure that Mr Grayling will stand by that, and not bring a Silk along to talk the President out of it, or appeal any decision that the President might make.

 

And also note that the President drags the poor old Local Authority into this, despite being a private law case that they aren’t involved in.

 

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

 

 

It is wrong, and probably a contempt of Court for me to refer to the President of the Family Division as Dude – so let’s for a moment imagine that I am talking about someone entirely different  (which I am, I am addressing a friend of mine who has just made this very suggestion, in coincidentally the same words that the President used), but

 

Dude !

 

Are you saying that if a child has a fractured skull, and the suspects are mother and mother’s boyfriend, and mother’s boyfriend can’t get legal aid, the Local Authority should pay for the boyfriend’s lawyers to fight the case against them? That it would be fine for those lawyers to be paid by the applicant in the proceedings, who is running a case directly in opposition to their client?

 

Dude!

 

 

[I think in the light of Re T, we’d see what the Supreme Court thought about that. The answer it seems to me, is that we need our Courts to unlock s10 LASPO exceptions by saying that these cases would be an article 6 breach in accordance with the spirit of Airey v Ireland, and it would be Wednesbury unreasonable for the Legal Aid Agency to decide otherwise once a judge has ruled that there would be an article 6 breach. IF that is the path that the President goes down, it seems to me to have the potential to punch a big hole in the hull of HMS LASPO – it is lucky that Mr Grayling trusts the Judges]