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Court service to pay father’s legal costs K& H

 

I had imagined that the President would be the first Judge to use the powers he speculated in  Q v Q that the Court might have, to make Her Majesty’s Court Service pay the legal costs of a party who would have their article 6 rights breached by being unrepresented. But I was wrong. It was H H Judge Bellamy, sitting as a Deputy High Court Judge  (always making my head hurt about whether it is precedent authority or not)

 

Re K and H (children : Unrepresented father : Cross-Examination of a Child) 2015   (The 2015/1 in bailii’s link suggests it might be the first 2015 reported judgment as well)

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/1.html

Bald facts – private law dispute, allegation about father sexually abusing the child, allegation disputed. Judge ruled that child was a capable witness and should be cross-examined. Dad did not want to cross-examine the child himself and all agreed that this would be bad – the forensic exercise much more serious than a Judge just ‘putting’ things to the child and in effect presenting father’s case.

Lord Chancellor asked to intervene, and represented very ably by Ms Whipple QC  (funny how there’s always public money to get the best for the Lord Chancellor, but not for others…)

 

I’m going to surprise you now. I think the Lord Chancellor should appeal this decision, and I think they should win the appeal.

 

Why?

Because this isn’t a case of a father who would have got funding pre LASPO now not getting it, and not a case of the Legal Aid Agency being mealy-mouthed about section 10 discretion to grant funding. This man was over the financial limits for legal aid. And not a little bit – he was double the disposable income limit.

Now, that doesn’t mean that he can necessarily afford to pay privately for legal representation, nor that paying privately wouldn’t be expensive and wouldn’t hurt.

But we’ve not had in this country for private law disputes a situation where EVERYONE gets free legal advice regardless of means (we have that for parents in care proceedings, that’s different). There has always been a financial limit – a point at which the State says “you earn too much to get free legal advice”  (or more accurately “you earn too much for other taxpayers to be footing your bill for free legal advice”.   You might argue until the cows come home about whether that’s right or fair, but it has ALWAYS been the system. This is not a Grayling change, this man would not previously have got free legal advice under any government you care to mention.

Whether it is fair or not, the State has said, there’s a cut-off point – we soften it by saying when you are near it you can still get legal representation but you have to make a contribution to it, but if you’re double the cut off point, you don’t get free legal representation.  Nobody in that position ever has, and there weren’t article 6 breaches in any of those cases.

If HMCS are going to fund this man, then they are potentially going to fund many more like him – and more to the point, all those people in the past who had to pay privately for their lawyers are going to rightly feel aggrieved.

The ECHR has never said that States can’t set financial limits on free legal aid and representation, nor where those limits are.

I’m no fan of LASPO, and have been pretty vocal about it, but this isn’t a LASPO failure or a LASPO injustice. This is a flat-out  “when someone really needs legal advice and the State limits suggest that they ought to put their hand in their own pocket, should the taxpayer pay instead?”

Just because this bill is coming from HMCS doesn’t mean that the money isn’t ultimately coming from a taxpayer  (and frankly, I’d be really, really wary of taking the case on for him because I don’t think whoever does it will ever see a penny – after all, if the Court stiffs you on your bill, what are you going to do about it? Sue?   I think the French expression is, “to whom do you complain when it is the Judge who is screwing your wife?”)

 

I think it is a good judgment, and it is thorough and detailed, but for me, that key point is not given sufficient weight, and for that reason, I’d be expecting it to be appealed and successfully appealed to boot.

Everyone really ought to read Re D

 

I had meant to write about this over the weekend, but the Muse just never came to me.

 

Re D 2014

 

http://www.judiciary.gov.uk/wp-content/uploads/2014/10/re-child-d.pdf

Please read Allan’s excellent piece here

http://celticknotblog.wordpress.com/2014/11/02/if-the-state-wants-to-take-your-child-be-prepared-to-represent-yourself/

 

Basically it is a judgment by the President, building on Q v Q, and also the decision of Baker J in Re D.  The case involved a child who was at home with parents under a Care Order – the LA felt it had gone wrong and removed the child. Baker J heard a case where the parents (the father lacked capacity) wanted to challenge that, and the only option seemed to be an application to Discharge the Care Order. Baker J found that the other option is an application under the Human Rights Act.

The parents did not qualify for legal aid as a result of LASPO, and thus were represented by counsel acting for free. Not ideal, because that is dependent on a man with learning difficulties (a) KNOWING that there’s something he can do and what it is and (b) convincing a lawyer to do the case for free for him.

 

Deep breath.

 

Next, what happened was that the Local Authority decided that they were not going to rehabilitate the child to the parents care and a Judge agreed. Due to the age of the child, the alternative plan was adoption. The Local Authority applied for a Placement Order, which authorises the child to be placed for adoption.

 

You will recall all of the Court of Appeal decisions this last year about how serious an order adoption is, so of course, if a parent is facing a plan to adopt their child, they get free legal advice and representation to fight the case, right?

 

Wrong.

 

IF THE PLACEMENT ORDER application happens WITHIN care proceedings, the parent has free legal advice and representation to fight the case. BUT, if the Placement Order is a stand-alone application (i.e the Care Order has already been made) then they do not qualify automatically for legal aid.

 

Instead they rely on the Legal Aid Agency deciding that their case is exceptional and that their human rights would be breached if they were not represented.  That’s the s10 LASPO powers that the LAA repeatedly fail to use, even when Judges tell them that if it is not used in a particular case it would breach the parents article 6 rights.

 

Even worse than that, because the father had no capacity, the Official Solicitor has to be invited to represent him. Without public funding, the Official Solicitor is potentially exposed to any costs order. So, in this case, the lawyers representing father (who, remember, aren’t earning a penny out of the case) had to give the Official Solicitor an INDEMNITY  – a legally binding promise that if the Court eventually made a costs order against the father that the other sides costs be paid, those would be met by the lawyers out of their own pockets rather than by the Official Solicitor.

 

If you think that it might be tricky to find a lawyer to represent you for no payment, it is, but it is possible. But I’ve never heard before of a lawyer representing someone for no payment who also took on a financial risk of paying the other sides costs. These were extraordinary people.

 

So, the case got before the President, it being one of those case post Q v Q, where the Court might consider who should pay for the parents legal costs.

 

The judgment DOES NOT deal with the merits of the case, or why the child was removed, or whether adoption is right or wrong – it is purely dealing with whether a system that simultaneously says “Adoption is the most draconian order available in the law” and “you can’t have a lawyer to fight it, even if you can’t read” is a fair system.

 

In the circumstances as I have described them, the parents’ predicament is stark, indeed shocking, a word which I use advisedly but without hesitation.

31. Stripping all this down to essentials, what do the circumstances reveal?

i) The parents are facing, and facing because of a decision taken by an agent of the State, the local authority, the permanent loss of their child. What can be worse for a parent?

ii) The parents, because of their own problems, are quite unable to represent themselves: the mother as a matter of fact, the father both as a matter of fact and as a matter of law.

iii) The parents lack the financial resources to pay for legal representation.

iv) In these circumstances it is unthinkable that the parents should have to face the local authority’s application without proper representation. To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.

(v) If his parents are not properly represented, D will also be prejudiced. He is entitled to a fair trial; he will not have a fair trial if his parents do not, for any distortion of the process may distort the outcome. Moreover, he is entitled to an appropriately speedy trial, for section 1(2) of the 1989 Act and section 1(3) of the 2002 Act both enjoin the court to bear in mind that in general any delay in coming to a decision is likely to prejudice the child’s welfare. So delay in arranging for the parents’ representation is likely to prejudice the child. Putting the point more generally, the court in a case such as this is faced with an inescapable, and in truth insoluble, tension between having to do justice to both the parents and the child, when at best it can do justice only to one and not the other and, at worst, and more probably, end up doing justice to neither.

vi) 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? As Baker J said in the passage I have already quoted, “It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.”

 

The President very neatly identifies the problem, but is there a solution?  (well, there’s an immediate one – declare s10 LASPO incompatible with article 6 – it is not being implemented as it is written, and in any practical sense it is now incompatible. Also the schedule in LASPO that does not provide for Placement Orders to attract non-means non-merit funding is incompatible with article 6)

 

We’re not going down that route yet though. Instead, the President keeps inviting the knuckle-heads who have got us into this mess to come up with a solution.

 

 

  • What then is the appropriate way forward?
  • If legal aid is not available for the parents then I need to explore whether there is some other public pocket to which the court can have resort to avoid the problem. There are, in theory, three other possible sources of public funding. As I said in

 

  1. Q v Q [2014] EWFC 7, para 18:

“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 … where one party is publicly funded … 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.”

I continued (para 19):

“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”.

The need for such investigation in the present case is, if anything, even more pressing than in

Q v Q.

I have accordingly directed that there be a further hearing at which, assuming that the parents still do not have legal aid, I shall decide whether or not their costs are to be funded by one, or some, or all of (listing them in no particular order) the local authority, as the public authority bringing the proceedings, the legal aid fund, on the basis that D’s own interests require an end to the delay and a process which is just and Convention compliant, or Her Majesty’s Courts and Tribunals Service, on the basis that the court is a public authority required to act in a Convention compliant manner.

Copies of this judgment, and of the order I made following the hearing on 8 October 2014, will accordingly be sent to the Lord Chancellor, the Legal Aid Agency, Her Majesty’s Courts and Tribunals Service and the Association of Directors of Children’s Services, inviting each of them to intervene in the proceedings to make such submissions as they may think appropriate. If they choose not to intervene, I shall proceed on the basis of the conclusions expressed in this judgment, in particular as I have set them out in paragraph 31.

In the meantime, bear in mind that any plan of the child being at home with a parent, or with a relative under a Care Order carries huge risks for all involved.

The parent may find themselves, if all goes wrong, faced with a removal that they haven’t got legal aid to fight, and a Placement Order application that they haven’t got legal aid to fight.

And a Local Authority may find themselves, depending on the outcome of the next stage, facing the prospect of paying parents lawyers to litigate against them in a future application for a Placement Order if it all goes wrong.

[I have a loophole solution to this, which I am happy to share with any lawyer who contacts me – I’m not going to put the solution up online to tip off the LAA as to the loophole though]

 

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.

 

Legal aid for section 51 applications – contact post adoption

Forgive me for this, because it is going to be dryer than eating a packet of Jacob’s Cream Crackers in the Gobi desert, but it is potentially important, and might save someone else an hour of slogging through law to find the answer.

 

“Can you, or your clients,  get legal aid to help you make an application for post adoption contact, when the section 51 provisions come into force?”

 

 

If you haven’t read the preceding blog, none of this s51 stuff will make any sense, so you might want to do that first.

 

There’s a bit tucked away in the Children and Families Act 2014, that specifies that there are some changes to the Legal Aid, Sentencing and Punishment of Offenders Act  2012  (LASPO).

 

Why does that matter? Well, because LASPO is what decides whether a person can get legal aid to make their application 

 

[It also probably has the unique distinction of being a piece of legislation that every English lawyer can agree about hating. Usually, even if an Act comes in that is stupid and frustrating, say the “Hairdryers – Prohibition against making them out of Ice Act 2009”  you can find a couple of lawyers who made some money out of training on it, or suing someone for breaching the Act, or defending someone accused of breaching it.  This one, everyone hates. And you can’t even think – well, I’m diametrically opposed to everything that LASPO stands for, but I can still admire it as a beautifully crafted and mechanically sound piece of drafting. It isn’t that, either]

 

This is what s9 (12) of Children and Families Act 2014 says:-

 

 

(12) In Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of

Offenders Act 2012 (civil legal services)—

(a) in paragraph 12(9) (victims of domestic violence and family matters), in

the definition of “family enactment” after paragraph (o) insert—

“(p) section 51A of the Adoption and Children Act

2002 (post-adoption contact orders).”, and

(b) in paragraph 13(1) (protection of children and family matters) after

paragraph (f) insert—

“(g) orders under section 51A of the Adoption and Children Act 2002 (post-adoption contact).”

 

[The Children and Families Act 2014 is no Mona Lisa of the drafting world, either, to be frank]

 

Which brings the potential that section 51 applications MIGHT be eligible for legal aid.

 

Under LASPO, there are two distinct categories

 

1)     Cases which are within scope, and will be funded if there is means and merits to the application, but are the SORT of cases that in principle that legal aid can be given for  (those are ones that are contained in Part 1 of Schedule 1 of LASPO, so you can see that there is POTENTIAL for s51 applications

 

2)     Cases that are not within scope, but MIGHT be funded if the Legal Aid agree that there are exceptional circumstances that justify it  (in practice, no chance)

 

 

You find that explicitly in LASPO, though written in oblique language

 

9 General cases

(1)Civil legal services are to be available to an individual under this Part if—

(a)they are civil legal services described in Part 1 of Schedule 1, and

(b)the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination).

 

10 Exceptional cases

(1)Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) or (4) is satisfied.

(2)This subsection is satisfied where the Director—

(a)has made an exceptional case determination in relation to the individual and the services, and

(b)has determined that the individual qualifies for the services in accordance with this Part,

(and has not withdrawn either determination).

(3)For the purposes of subsection (2), an exceptional case determination is a determination—

(a)that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of—

(i)the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or

(ii)any rights of the individual to the provision of legal services that are enforceable EU rights, or

(b)that 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 such a breach.

 

 

[What section 10 means in practice is “we were obliged to say that this Act was compatible with the Human Rights Act, so we stuck in this exceptional provision for legal aid to be granted in cases where NOT granting it would be a breach of Human Rights, but actually dishing it out to real people, for real cases? I should cocoa”    *]

 

 

*I wish people said “I should cocoa” more often

 

 

Anyway, the addition of s51 applications to Part 1 Schedule 1 means that the applications MIGHT fall within scope for legal aid (and thus be applications which might get legal aid after a means and merit test is applied)

 

However, it is not as simple as that (sorry) because where s51 gets placed in Part 1 Schedule 1 of LASPO means that these applications are only in scope in narrow circumstances, and for all others you are stuck with exceptional (remember, when I say exceptional here, the statutory definition of whether that will actually occur is  “as likely to happen as a comet made of solid gold landing in your back garden and striking oil where it lands”      –    The Let’s Pretend Something is Available when it really isn’t Act  2014 section 1(1) )

 

 

 

So, in Part 1, Schedule 1 of LASPO  (as amended by Children and Families Act 2014),  applications under s51 come in two possible categories where the application can qualify for public funding

 

 

Paragraph 12

 

Civil legal services provided to an adult (“A”) in relation to a matter arising out of a family relationship between A and another individual (“B”) where—

(a)there has been, or is a risk of, domestic violence between A and B, and

(b)A was, or is at risk of being, the victim of that domestic violence.

 

 

So, if you can persuade the Legal Aid Agency that the reason you are applying for an order for post-adoption contact is that you are the victim of domestic violence or are at risk of domestic violence and that the application is in some way a remedy for that, you might get legal aid.

 

[Is it just me, or does that seem inherently unlikely? I mean, I have a creative brain and love thinking up crazy scenarios, but I’m struggling to come up with a set of circumstances that would fit that]

 

I suppose, racking my brain, that given that s51 allows for the Court to make an order that there shall be no contact, there MIGHT, just MIGHT be a conceivable circumstance in which the post-adoption contact order application might be to stop the perpetrator of domestic violence having contact and that would in some way alleviate the risk to the applicant. 

 

 [It is also possible, and perhaps more likely,  that this is referring to the adopters themselves as applicants for an order for NO contact to an individual, though the amount of adopters who would pass the means element of the Legal Aid test is microscopic, I suspect]

 

 

The other category is

 

Paragraph 13

 

Protection of children and family matters

13(1)Civil legal services provided to an adult (“A”) in relation to the following orders and procedures where the child who is or would be the subject of the order is at risk of abuse from an individual other than A

 

 

So the applicant would need to persuade the Legal Aid Agency that the purpose of the application for post-adoption contact is to protect the child from risk of abuse from a named individual  (that individual has to be someone other than the applicant)

 

If you are the biological mother, you MIGHT be able to persuade the Legal Aid Agency that the risk of abuse comes from the child’s father and not yourself, or vice versa.  But I’m struggling to see how you persuade the Legal Aid Agency that the right way to protect the child from the risk of abuse is that you have some post adoption contact.

 

I again think that this is probably aimed more at financially impoverished adopters who meet the means test for Legal Aid, and are saying that contact poses a risk of abuse to the child from the parents.

 

 

I’m afraid that all of that was very long, because it is complicated, but how it ends up, it seems to me, is that section 51 applications aren’t going to be backed by Legal Aid UNLESS the LAA agree that there are exceptional circumstances   [solid gold comet strikes oil – you are now so rich you don’t need Legal Aid]

 

You could argue that if Parliament genuinely intended section 51 applications to be made, and for deserving cases to result in section 51 orders, they could have placed such applications squarely in Part 1 Schedule 1 of LASPO without the bizarre qualifications.  The gatekeeping provision could have been that the Legal Aid Agency would have to determine whether the application had sufficient merits to justify the funding being awarded.

Unless and until either the English Courts or the ECHR give a decision saying that failure to provide funding for such an application is in breach of human rights, it looks as though any parent making such an application would be doing so as a litigant in person.  Good job the legislation is written in such plain English.