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.