6 August 2014
Top judge authorises court to cover legal aid in challenge to government
One of the most senior judges in England and Wales has thrown down a direct challenge to the government over legal aid by suggesting courts spend money in defiance of Ministry of Justice cuts to ensure justice is done.
Sir James Munby, the president of the family division of the high court , has ruled the court service should pay for lawyers if the Legal Aid Agency refuses to provide them. His judgment, which raises constitutional issues about who controls public money, follows a warning from divorce solicitors that the family court system is at breaking point because so many clients are no longer represented.
Munby's judgment covers three separate family cases where fathers, who wish to "play a role in the life of [their] child", have no lawyers to argue their case, while the mothers have been granted public funding to pay for legal representation.
None of tThe cases have been identified. They are described as Q v Q, Re B (A Child) and Re C (A Child). The president of the family division had previously adjourned Q v Q and asked the justice secretary, Chris Grayling, to explain how the case could proceed without legal aid.
The problems, the judge said, partially pre-date the coalition government's legal aid cuts but "most practitioners and judges with any practical experience of the family justice system would recognise [them] as having been very considerably exacerbated by" the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
He said: "There has been a drastic reduction in the number of represented litigants in private law cases. The number of cases where both parties are represented has fallen very significantly, the number of cases where one party is represented has also fallen significantly and, correspondingly, the number of cases where neither party is represented has risen very significantly."
The number of cases being helped through exceptional funding provisions was extremely small, Munby added. "Views may differ as to whether the 'exceptional' funding scheme is working effectively, a matter on which I express no opinion," he said.
In Q v Q, legal aid was withdrawn after the LAA decided that the father, a convicted sex offender, had no prospect of winning his access case. Providing further assistance was deemed a misuse of public funds.
In his concluding remarks on Q v Q, Munby decided: "If there is no other properly available public purse, the cost [of representation] will, in my judgment, have to be borne by Her Majesty's courts & tribunals service. "HMCTS will also have to pay the cost of providing the father with an interpreter in court. If the father is still unable to obtain representation, I will have to consider whether the cost of that should also be borne by HMCTS. That, however, is a matter for a future day."
He made similar recommendations in the other two cases, Re B and Re C, on the grounds that unless they are represented in the hearings, their rights to a fair trial under article 6, and private and family life under article 8 of the European convention of human rights would be put at risk.
Munby added: "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... The Ministry of Justice, the LAA and HMCTS may wish to consider the implications."
The Ministry of Justice said: "We are considering the judgment."Bill Waddington, chair of the Criminal Law Solicitors Association, said: "Today's decision shows that Grayling's tank is running on empty. When senior judges are overruling him in the family courts over his legal aid reforms it can only mean one thing: what little support his reforms had is well and truly tapped out."