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The ‘evidence of domestic violence within 2 years’ Regulation found unlawful

I am struggling to think of a piece of legislation that has had as many successful challenges to the legality of Regulations issued under it as the much-beloved LASPO  (Legal Aid, Sentencing and Prosecution of Offencers Act 2012)

The particular Regulations here are Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012

LASPO sets out that being a victim of domestic violence can be a reason for the provision of free legal representation.  The sense of this is that where someone has been the victim of domestic violence, it would be abusive and damaging for the State to make them face the perpetrator in Court without a lawyer to represent them.  [Note that this provision still only applies within financial limits – below a specified income and capital the State should pay for that, above that and the individual would have to pay for it themselves, regardless of whether the legal representation is actually genuinely affordable on that income]

There is, of course, an entirely separate debate about whether someone who is accused of perpetrating domestic violence should be entitled to free legal representation to defend the allegations (at least until the Court has determined the truth of the allegations), but that’s beyond the scope of this case.  [For my part, I think that LASPO should have provided for that, but it doesn’t]

Regulation 33 sets out that in order to show that you are a victim of domestic violence, you need some documentary evidence of that to get legal aid, and that the evidence must be within the last 24 months.

This 24 month rule was challenged.  [Note that although the application was brought by a group lobbying for women’s rights, men of course can also be the victims of domestic violence and abuse, and this case applies to men as well]

Rights of Women, R (on the application of) v The Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 91

http://www.bailii.org/ew/cases/EWCA/Civ/2016/91.html

 

Whilst the judgment is fairly long and involves some rather nuanced discussions about Padfield unfairness versus Wednesbury unreasonableness, the case can be condensed into these short passages

 

  1. Ms Lieven submitted that the evidence shows (as practitioners in the Family Division know from their own experience) that there are many situations in which victims of domestic violence find themselves at the receiving end of legal proceedings not merely more than 24 months after incidents of domestic violence have occurred but more than 24 months after it is practical to obtain the kind of verification required by regulation 33. Examples of such cases are:-

    i) the perpetrator may have been in prison; once he (it is almost always he) is released, he may initiate proceedings for child contact or divorce and financial settlement; regulation 33(2)(a) can only be relied on if the conviction preceding the prison sentence is a relevant conviction for a domestic violence offence and if it is unspent; if the sentence is a fine or a community order, the conviction will be spent after only 12 months from the date of conviction or from the last day the order is to have effect;ii) there may have been a non-molestation order (or other form of injunction) which has kept the parties apart for 2 years but has expired before legal proceedings are begun;

    iii) a similar period of separation may have occurred for other reasons such as the receipt of a police caution or other police involvement; criminal proceedings may have been instituted which do not result in a conviction; such non-convictions occur for many reasons other than that the alleged perpetrator is innocent;

    iv) there is no time limit for the initiation of proceedings for child contact; a refusal of child contact does not prevent a re-initiation of proceedings which can therefore be served again on the victim of domestic abuse after the expiry of the two year period. Additionally, the court can direct, pursuant to section 91(14) of the Children Act 1989, that no such proceedings shall be begun without permission of the court for a period until the expiry of the two year period in which domestic abuse could be verified in accordance with the Regulations; if the Court also directs that any application for permission is not to be served on the respondent, a victim of domestic abuse may receive no notice of prospective proceedings within the relevant period in which she may otherwise take steps to obtain verification;

    v) The main priority of any victim of domestic violence will be to make immediate arrangements for her personal safety and that of her children; this may take a considerable time particularly if the abuse was prolonged or the marriage was originally a forced one; any proceedings sought to be brought by the victim for divorce or financial relief may well be more than 24 months after any practical ability to obtain verification has passed;

    vi) although the definition of domestic violence extends beyond physical abuse to psychological or emotional abuse, the verifications required by regulation 33 are much more easily satisfied where there has been physical abuse than where there has been psychological or emotional abuse. This means that even though signs of psychological or emotional abuse may persist longer than sign of physical abuse, there is considerable difficulty for the victim in obtaining the necessary verification after any lapse of time; and

    vii) victims of financial abuse will not be able to obtain any of the verifications required by regulation 33 at all. (The only answer Mr Sheldon could give to this last point was the inadequate one that victims of financial abuse could always be expected to show evidence of psychological abuse).

  2. This is a formidable catalogue of areas of domestic violence not reached by a statute whose purpose is to reach just such cases. But does it go so far as to show that the 24 month requirement has no rational connection with the statutory purpose?
  3. In my judgment it does. There is, as Ms Lieven submits, no obvious correlation between the passage of such a comparatively short period of time as 24 months and the harm to the victim of domestic violence disappearing or even significantly diminishing. No doubt the 24 month requirement serves the purposes of the statute as the Divisional Court considered them to be but as I have said those purposes are not the only purposes of the statute. Once it is accepted that part of the statutory purpose is to ensure that legal aid is available to (at any rate the great majority of) sufferers from domestic violence, one has to ask why it is that so many of them are excluded by virtue of the 24 month rule. Mr Parsons’ assertion that “the time limit provides a test of the on-going relevance of the abuse” does not justify the many excluded instances or the lack of any opportunity for victims of domestic violence to explain why it would be unjust to apply the time limit to their particular case. It operates in a completely arbitrary manner

 

And then

 

I would therefore allow this appeal and, subject to any further argument about the detail of the form of order, in principle declare that regulation 33 is invalid insofar as it

a) requires verifications of domestic violence to be given within a 24 month period before any application for legal aid; and

b) does not cater for victims of domestic violence who have suffered from financial abuse.

A cynical person might say about LASPO that Parliament when considering this Act were rightly very troubled by the original legislation and the lack of protection for certain vulnerable groups, which was why some safeguards were inserted into the final version of the Act, and that the Legal Aid Agency and Ministry of Justice have systematically attempted to erode those safeguards by Regulations (which have been successfully challenged) and guidance on implementation (which has also been successfully challenged).

In effect, Parliament agreed to trade in the car that they owned for a greatly inferior but still safe model to save cash, and agreed to let the Minister have a copy of the car keys, in case he or she needed to tune up the car or valet the inside at any time (the power to make Regulations).

 Then the Minister snuck off in the night, used the keys and removed the brakes, seatbelts, speedometer, and airbags that would make the inferior car still safe to drive.

The Courts have ordered these safety measures to be reinstalled. But so far, each individual bit of ministerial pilfering has had to be dealt with one at a time. I hope that MPs are keeping up to date with the bad-faith approach to LASPO and will approach any future legislation with a much more cynical eye on giving Ministers the car keys in the future.

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Funding of intermediaries

[See last blog]

 

An email came to me suggesting that it could be argued that rather than the Legal Aid Agency paying for the intermediary, it could come from HMCTS. I.e the Court pays.

Thinking of it in that way, it occurred to me that the President had floated in Q v Q the idea that HMCTS paying for a lawyer for an unrepresented person was analogous to HMCTS paying for interpreters or intermediaries. But I knew that the final conclusion in Q v Q was appealed when HH J Bellamy made such an order in Re K and H. So, does perhaps the Court of Appeal decision in Re K and H 2015 give us an answer on this?

I think that it does.

 

http://www.familylawweek.co.uk/site.aspx?i=ed145039

 

  1. As we have seen, in reaching his conclusion, the judge was influenced by the fact that HMCTS meets the cost of interpreters, intermediaries and the preparation of court bundles under the Financial Resources Regulations. He said that these are “aspects” of “representation” within the meaning of section 42 of LASPO. Section 42 defines “representation” as meaning “representation for the purposes of proceedings” and includes “the advice and assistance which is usually given by a representative in the steps preliminary or incidental to proceedings”. He considered that by analogy, HMCTS has the power to meet the cost of legal representation.

 

  1. I do not accept that interpreters or intermediaries are “representatives” within the meaning of section 42, still less that they provide the services of a legal representative. In In the Matter of D (a child) (No 2) [2015] EWFC 2, Sir James Munby said at para 17:

 

“The cost of funding an intermediary in court properly falls on Her Majesty’s Courts and Tribunals Service because, as the LAA has correctly pointed out, an intermediary is not a form of ‘representation’ but a mechanism to enable the litigant to communicate effectively with the court, and thus analogous to translation, so should therefore be funded by the court: see Re X, para 37 and C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin), [2010] 1 All ER 735, paras 26-27.”

 

  1. I agree with this. Nor do I see how the fact that HMCTS funds the preparation of court bundles from time to time sheds any light on whether the court has power to require HMCTS to fund the cost of legal representation.

 

 

For me, that seems to settle it. The LAA should not be asked to fund an intermediary, but instead it should fall on HMCTS. Re D is binding on most Courts as a High Court authority, and given that the Court of Appeal looked at it in Re K and H and agreed, it binds just about everyone.    The Court of Appeal specifically AGREED that the cost of funding an intermediary in Court properly falls on HMCTS.

 

So having identified a problem, I’ve accidentally solved it.

What I don’t yet know is whether the Court has a duty to provide the intermediary once a recommendation is made or whether the Court could press on without one. (remembering that whilst an expert recommends something, it is ultimately a matter for the Judge whether to accept that recommendation).

I don’t think that a Judge could say “I agree with Dr Nolan that an intermediary is required, but I am not going to order one because of X”  but that a Judge COULD say “Dr Nolan says that an intermediary is required – I have decided that it is not required because of X”.     It always makes me a bit uncomfortable the notion that a Judge (who is ultimately employed by HMCTS and to some extent accountable to them) has to decide whether HMCTS should incur expenditure.

 

 

IS v Director of Legal Services 2015

Many other people will be writing about this case, but I’ll just give the bit for the family lawyers and Court of Protection lawyers (since it touches on capacity cases). Really important for the battles that have been fought since LASPO to say that it is being interpreted by the Legal Aid Agency in a way that, as Mostyn J put it

 

“sacrifices individual justice on the altar of public debt”

 

[which is approvingly cited in the case. Hell yeah]

 

http://www.bailii.org/ew/cases/EWHC/Admin/2015/1965.html

 

This is of course, the case about whether the Legal Aid Agency were properly using their discretion on granting public funding for cases where to represent yourself would put you in a position where your human rights would be breached, i.e section 10 LASPO. The LAA lost. They intend to appeal.

 

The really important bit for family law cases is paragraph 40

 

 

It is difficult to imagine a family case, particularly when there are contested issues about children, in which there would not be an interference with the Article 8 rights of either parent or the children themselves. Thus unless the party seeking legal aid could albeit unrepresented present his or her case effectively and without obvious unfairness, a grant of legal aid would be required. That does not mean that every case will require it: some may be sufficiently simple for the unrepresented party to deal with. Obviously if there is a lack of capacity even such cases may require legal aid. That issue I will have to consider in further detail later. But I am bound to say that I believe that only in rare cases, subject to means and merits if properly applied, should legal aid be denied in such cases. As it is now applied, the scheme is clearly wholly deficient in that it does not enable the family courts to be satisfied that they can do justice and give a fair hearing to an unrepresented party. While the problem may perhaps be less acute in other civil cases, I have no doubt that the difficulties I have referred to in family cases apply.

 

You can’t really have a much clearer message than that to say that the low rate of s10 LASPO public funding applications being granted, and the tests and guidance being applied by the LAA are wrong. Scandalously wrong.

 

Paragraph 80 also good  – that the process of making an application is made unnecessarily difficult, and this, combined with the poor success rate has had the obvious effect of discouraging such applications from being made.

 

The main problem lies in the forms which are prescribed. They are far too complicated and are not at all helpful to lay persons. Providers have difficulties with them and the small level of grant has unquestionably, on the evidence which has not shown to be erroneous, led to the unwillingness of providers to take on clients who need to apply for ECF. The scheme is not properly providing the safety net which s.10 is supposed to provide. It is to be noted that it was anticipated that some 5,000 to 7,000 applications would be made in a year. The actual rate was a fraction of that. The defendants say that the figures they relied on were only estimates for planning purposes. In a letter of 20 August 2013 the MoJ stated that the figures were based on the number of grants estimated in the LASPO consultation exercise, namely 3,700. It is significant that the scheme has not produced anything like that number of grants, let alone applications. Furthermore, as the OS has indicated and a number of applications dealt with in the statements confirm, the hurdle erected for those who lack capacity is far too high. Those who are unable to pay for legal assistance are suffering in a way that Parliament cannot have intended.

 

 

And final flurry of killer blows

  1. As will become apparent, I think that there must be changes to the scheme. The ECF application forms are far too complex for applicants in person. Separate forms should be provided. Indeed, overall the test set out in R(G) can be set out in the form and applicants or providers can then be required to give full details of the need for legal assistance by producing all existing material relevant to the application. As I indicated, what is put on the website can surely be put on a form. Consideration must be given to provision of Legal Help to enable providers to do work to see whether a client has a case which should be granted legal assistance because it qualifies within s.10 of the Act. No doubt the LAA will be entitled to decide whether any such application is reasonable since a provider must satisfy himself that there is a possible need for legal assistance on the basis of preliminary information given by the client and any relevant documents provided. Legal Help does not require a prospect of success test.
  2. The rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable.
  3. As will be clear, I am satisfied that the scheme as operated is not providing the safety net promised by Ministers and is not in accordance with s.10 in that it does not ensure that applicants’ human rights are not breached or are not likely to be breached. There is a further defect in the failure to have any right of appeal to a judicial body where an individual who lacks capacity will otherwise be unable to access a court or tribunal.

 

 

I don’t know about you, but I find  something shameful about a Ministry of Justice being condemned by a Court for their part in devising a scheme that deprived individuals of justice in order to assauge public debt. And similarly something shameful that a body whose job it is to ensure that people have access to legal representation and advice going out of their way to prevent them getting it.

But then, these are bodies who in their response to the criticisms laid against them by the Justice Select Committee of Parliament with comments like  “The Court did not rule that our policy was wholly unlawful” as though that was something that a Ministry of Justice should actually boast about.

 

Which reminds me rather of Steve Coogan’s pool attendant from the Day Today

 

 

Court of Appeal say no judicial power to order Court to pay for legal costs

 

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.

 

http://www.childrenslegalcentre.com/index.php?page=judgment_in_court_of_appeal_case_in_which_cclc_intervened

 

No broad presumption in favour of a natural parent

The Court of Appeal in Re E-R (A child) 2015 had to deal with a very emotionally difficult case.  [Don’t ask me why they call the case “Re E-R a child, but then use T as the child’s codename throughout. I have no idea why, it makes no sense] 

 

T was five years and nine months old. She had lived with both parents until she was two and they separated, and from then on with her mother. Her mother sadly was diagnosed with cancer.  The separation from the father had been very acriminious and the father had drifted out of T’s life.

 

The mother had made a will appointing a friend SJH as testamentary guardian, wanting SJH to care for T after her death. She and T moved in with SJH, who provided the mother and T with care.  SJH made an application for a Special Guardianship Order whilst the mother was unwell but still alive.

 

His Honour Judge Vincent at the family court sitting at Truro on the 30th January 2015. The judge’s order provided for a little girl, T, born 22 July 2009 (5 years 9 months) to move to live with TR (her father), and JB (his partner) and, thereafter, to have extensive contact with the Appellants with whom T and SH (her mother) were currently living. The judge dismissed the Appellant’s application for a special guardianship order in respect of T. The unusual and tragic feature of the case is that the variation of T’s current living arrangements provided for by the order were to take effect only upon the anticipated death of T’s mother.

The principal issue in the appeal turns on whether the judge had erred in law, having conducted his welfare analysis on the basis that there was “a broad natural parent presumption in existence under our law”. The Appellants appeal only the child arrangements order and do not appeal the judge’s refusal to make a special guardianship order.

 

Very sadly, the mother died before knowing the outcome of the appeal and thus without knowing whether her daughter would continue to live with SJH or whether she would be removed and placed with the father.

The Court note at the end, but I think it is very important, that everyone in this case struggled with the law (counsel in the first hearing and the Judge) and that father had not been able to be represented and had to represent himself in the Court of Appeal on extremely tricky points of law. A wholly unacceptable situation.

  1. This was a difficult case. The court was faced with making a decision as to what arrangements could best be made to ameliorate the loss to T following the death of her mother. The judge listened conscientiously and carefully to extensive evidence and made findings about the parties involved. He was however denied critical assistance in two respects:

    i) The relevant law was not brought to his attention; as a consequence his analysis was conducted on the basis that there was a presumption that T should live with her father. This was wrong in law and as already indicated, upon that basis alone, the appeal must be allowed.

    ii) The judge might nevertheless have been better able to analyse the complicated issues which were thrown up had he had the benefit of something more than the somewhat one dimensional and superficial reports which were available to him.

  2. The father has today once again been in a position of having to represent himself. This case is yet another example of the consequences of treating private law children proceedings, (in the absence of allegations of domestic violence), as being essentially straightforward matters in which parents are expected to “sort themselves out” and to make appropriate arrangements between themselves to enable their children to spend time with each of them without the necessity for, or entitlement to, legal representation.
  3. The challenges presented by this case are obvious and have been set out above; the difficulties have been demonstrated at every professional level in the case, from the reports being wholly unsuited to the complexity of the case to counsel being unaware of the legal issues thrown up. As a consequence, the judge was left having to deal with the case without the help he needed. If the complexities of the case proved too much for these skilled professionals, what hope was there for the father in trying to represent himself?
  4. Lord Justice McFarlane recorded, when granting permission that the issues raised in the appeal were principally a matter of law and that the father was to be given “every assistance” to obtain legal advice and representation. Unhappily the father appears before the court today once again unrepresented, although supported by JB. To his credit, the father has produced a skeleton argument for the court; his oral argument was courteous and moderate but inevitably did not touch upon the legal principle at the heart of the appeal. The father’s skeleton argument, far from addressing the point of law raised by the appeal, sadly serves only to underscore his animosity towards both the dying woman and the couple who have provided a home for her and for T during the period of time when he had been absent from their lives

 

The Court of Appeal did overturn the order and send it back for re-hearing.  That does not automatically mean that the decision is that T will live with SJH, but just that in making the decision it is not a starting point or broad presumption that it would be better for a child to live with a birth parent.  The Court of Appeal were at pains to point out that just as there’s no starting point or broad presumption that natural parent should prevail, nor was there one that the status quo should prevail.

  1. The Law
  2. In Re G 2006 UKHL 43; [2006] 2 FLR 629 the House of Lords held in a dispute between a lesbian couple, one of who was the biological parent of the child, that the welfare of the child was the paramount consideration and there was no question of a parental right which might over ride that consideration. Baroness Hale said:

    30. My Lords, the Children Act 1989 brought together the Government’s proposals in relation to child care law and the Law Commission’s recommendations in relation to the private law. In its Working Paper No 96, Review of Child Law: Custody (1986), at para 6.22, having discussed whether there should be some form of presumption in favour of natural parents, the Commission said this:

    “We conclude, therefore, that the welfare of each child in the family should continue to be the paramount consideration whenever their custody or upbringing is in question between private individuals. The welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child, in particular to his sense of identity and self-esteem, as well as the added commitment which knowledge of their parenthood may bring. We have already said that the indications are that the priority given to the welfare of the child needs to be strengthened rather than undermined. We could not contemplate making any recommendation which might have the effect of weakening the protection given to children under the present law.”

    Nor should we. The statutory position is plain: the welfare of the child is the paramount consideration. As Lord MacDermott explained, this means that it “rules upon or determines the course to be followed”. There is no question of a parental right. As the Law Commission explained, “the welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child” or, as Lord MacDermott put it, the claims and wishes of parents “can be capable of ministering to the total welfare of the child in a special way”.

    31. None of this means that the fact of parentage is irrelevant. The position in English law is akin to that in Australian law, as explained by Lindenburgh J in Hodak, Newman and Hodak (1993) FLC 92-421, and subsequently approved by the Full Court of the Family Court of Australia in Rice v Miller (1993) FLC 92-415 and Re Evelyn [1998] FamCA 55:

    “I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the Court commences its decision-making process… Each case should be determined upon an examination of its own merits and of the individuals there involved”

  3. In her conclusion Baroness Hale said:

    “44. The fact that CG is the natural mother of these children in every sense of that term, whilst raising no presumption in her favour, is undoubtedly an important and significant factor in determining what will be best for them now and in the future.”

  4. In Re B (a child) 2009 UKSC 5; [2010] 1FLR 551 Lord Hope referred back to the passage in Re G set out above, saying as follows:

    This passage captures the central point in the Re G case and of this case. It is a message which should not require reaffirmation but, if and in so far as it does, we’d wish to provide it in this judgment. All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only a contributor to the child’s welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interest of the child, it must be examined for its potential to fulfil that aim. There are various ways in which it may do so, some of which were explored by Baroness Hale in Re G, but the essential task of the court is always the same.”

  5. When granting permission to appeal McFarlane LJ said: “It is highly regrettable that the relevant case law was not drawn to the attention of the judge by counsel then instructed”. I respectfully agree. Had the two key authorities been put before the judge he would inevitably have approached his analysis from a different perspective aware that there is no “broad natural parent presumption” in existence in our law. Miss Renton who did not appear in the court below, on behalf of the Appellants submitted that had the judge approached the case from the correct legal perspective, he would not have fallen into error by elevating the father into a preferential position when he commenced his decision making process. The consequence of having done so, submits Miss Renton, is that whilst all the welfare factors properly analysed, pointed to the status quo being maintained, the biological link between the father and T had subverted the welfare factors in favour of a transfer of care to the father as a “capable father”.
  6. I accept Miss Renton’s submission that the judge wrongly conducted his analysis of T’s best interests on the basis that there is a presumption in law in favour of a natural parent. On this basis alone the appeal must be allowed.
  7. In support of her submission that an application of the welfare principle without an elevated presumption in favour of the father would have led the court to conclude that T should live with the Appellants with extensive contact to the father, In her grounds of appeal Miss Renton argued that the facts ‘militated strongly in favour of the status quo’, referring the court to a number of authorities predating Re G and Re B. In particular she relies on Re G (a minor – custody) [1992] 2 FCR 279 and a passage in which Lord Justice Balcombe said:

    I would agree that this is not a matter of presumption in the legal sense but, nevertheless, when dealing with the custody of small children undoubtedly, as a working rule, one does not disturb the status quo unless there is a good reason to do so.

  8. In my judgment this observation should be read against the backdrop of the views expressed by Baroness Hale in relation to natural parents in Re G and Lord Hope in Re B. If one translates the term of art “status quo” into something more meaningful by relating it directly to the welfare of a child, it simply refers in the broadest sense, to the current living arrangements of a child. For T, the status quo is that place where she is living and settled, in a familiar environment, cared for by people upon whom she can rely and who are currently offering her the love, security and consistency she needs to enable her to cope with the loss of her mother. The fact that a child of five is in such an environment and has been so for some time, will inevitably be a significant feature of the case and a matter of great importance when assessing the likely effect on her of a change in her circumstances.
  9. In the same way that the fact that a person is a natural parent does not in itself create a presumption in favour of that person in the proceedings, neither does (as Balcombe LJ observed), the fact that a child has been living with a party for a significant period of time; each are factors of significance which will be taken into account and given appropriate weight by a court when determining the best interests of a child Whether any such factor is determinative of a particular case will depend on the unique facts of that case.

 

I’ll clarify this – this is the law for PRIVATE law proceedings, and in care proceedings, there is clear authority that the best person to bring up a child is the parent.

“The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided thechild’s moral and physical health are not endangered.”

Lord Templeman in Re KD (A Minor) (Access: Principles) [1988] 2 FLR 139 at 141A.

This has been cited approvingly in dozens of cases and is a fundamental underpinning of public children law.  It at essence means that it is not the job of the Court when considering a Care Order application to think about whether the child might have a happier life, or better standard of living and better opportunities if they lived with foster carers or nice adopters, but to decide whether the parents care of the child was harmful to them in a way that could not continue. It is the bulwark against social engineering.

(Many would argue, and Owen Jones in particular has argued that a large part of the adoption system is social engineering, moving children from poor working-class families to middle-class ones, but if the Court does its job properly this ought not to happen)

There might well be some tricky decisions in future months when the options before the Court are not parent v foster care, but ‘good enough but not great parent’ versus ‘stellar grandparents’ – it must be very hard to resist the tempation to ‘fix’ the children’s lives by leaving them with far more capable grandparents. But that is a tempation that Lord Templeman warned us to avoid.

 

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)

 

 

 

 

 

 

really expensive legal researchers

Lindner v Rawlins 2015

http://www.familylaw.co.uk/news_and_comment/lindner-v-rawlins-2015-ewca-civ-51#.VNymu_msVic

 

In this case, the Court of Appeal were dealing with an appeal from a husband relating to divorce proceedings about a Judge’s refusal to order the police to provide him with information / a statement.  There had been a complaint from the wife (or the wife’s new partner, hence the husband’s interest) about an allegation of criminal damage to a Sky tv satellite dish.

The husband had done a lot of legal research, but was sadly relying on the Civil Procedure Rules and a case called Durham County Council v Dunn [2012] EWCA Civ 1654 which relates to the duties of disclosure and inspection owed by one party in litigation to the other.  Neither were really relevant in this case, which was Family Procedure Rules and relating to an order for disclosure against a third party.  I personally think that the husband had made a pretty decent fist of assembling his case, he’d just started from the wrong assumptions.

The Court of Appeal refused the appeal, but this is the relevant bit and why it is worth reporting.

The second observation is in no way a criticism of the husband who presented his case to us courteously and as comprehensively as he could. Nevertheless, the fact that he was not represented meant that he had approached it on a mistaken basis. The task that would normally have been fulfilled by the parties’ legal representatives, of finding relevant documents amongst the material presented, and researching the law and its application to the facts of the case, had to be done by the judges of the Court of Appeal instead. This is not a satisfactory state of affairs as the time taken to attend to this is considerable and cannot be spared in what is already a very busy court.

 

And

I agree with the judgment of Black LJ. I also wish, wholeheartedly, to endorse her observation at [32]. The procedural issue with which this appeal is concerned is technical and unusual. 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. The wife was neither present nor represented. 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.

 

It is quite easy to read this as a kicking to Chris[tian] Gray-ling and the devillish torments he has assembled for justice in his Red Room (and there’s an image you will be stuck with for the rest of the day, sorry), but I’m not quite sure that it is.

We don’t specifically get told what the husband does for a living, but we do know that there is a matrimonial home of a size for a family of four (husband, wife, two kids) and that it is in the Bromley area (because that was the original Court), so one might hazard a guess that to obtain and sustain a mortgage both parties would probably fall outside of the income limits for legal aid, even before the reforms. The husband is clearly bright and capable – one might criticise him for focussing his intellect in the wrong direction rather than moving on, but that’s by the by.

 

If I were staking money on it, it would be that this husband would not have qualified for free legal advice and representation even before Chris Grayling got his hands on the legal reins and made his changes of course.

If this was supposed to be an economy though, it isn’t. The Legal Aid Agency might have saved a few thousand in legal fees for someone to research and advise the husband (and they’d have advised against an appeal) but the taxpayer overall has lost out because three very senior Judges had to spend valuable time researching and working out the proper basis for the appeal and whether or not it should be granted.