Access to justice and the funding gap

In a mature legal system, with a complex body of law, I would suggest that access to justice is to all intents and purposes largely dependent on the ability of a litigant to source and fund appropriate professional advice and representation.

Anyone who has acted as an advocate in court knows that there few more painful things to watch than a litigant in person, struggling to put across their points, or making bad points or missing the point altogether, whilst the judicial temperature starts to rise.

More fundamentally, inequality in arms, with one party represented and the other not, means that justice in the sense of the right result, may not be done and justice, in the sense of a fully argued case which is obviously and fairly seen to be decided on the basis of its merits will almost certainly not be done. Such cases always leave me with a sense of unease.

Unease however, turns to alarm in those cases where the state of our law on funding, means that litigants are unrepresented when issues such as the welfare and safety of a child are at stake or where a parent due to disability is effectively precluded from advancing a coherent argument against a case, advanced by the professionally represented state seeking to have the parent’s child removed.

In such circumstances lawyers may step in to act pro bono but if they do not the risks of a miscarriage of justice would seem very grave.

In the case In the matter of D (A child) [2014] EWFC 39 a decision of the President of the Family Division, just that situation seems to have arisen. The case is interesting for a number of reasons.

First it illustrates a plain and obvious gap in the current scheme of public funding in cases where parents might conceivably lose their children.

Secondly it contains a number of fascinating dicta, on the obligations of the state to properly fund such representation.

Thirdly, it is worth noting for the generosity and sheer professionalism of the lawyers, acting in the case, who without prospect of reward did not turn away but acted in the finest tradition of St Ivo, to ensure their clients were not left without a voice.

The issues in the case are summarised in the first three paragraphs of the judgment:

The underlying issue in this case can be stated in a single sentence. Should a little boy, D, live with his parents, or, if they cannot adequately look after him, with other members of his wider family, or should he, as the local authority, Swindon Borough Council, argues, be adopted outside the family.

The issue could hardly be of more profound significance for both D and his parents. For the child, an adoption order, as I recently had occasion to remark (Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam), para 54) “has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences.” For the parents it means the permanent loss of their child. Whatever the ultimate decision, D and his parents will have to live with the consequences for the remainder of their lives, in D’s case, given his age, potentially into the 22nd century.

That, however, is not the issue currently before me. What I have to grapple with is the profoundly disturbing fact that the parents do not qualify for legal aid but lack the financial resources to pay for legal representation in circumstances where, to speak plainly, it is unthinkable that they should have to face the local authority’s application without proper representation.

The underlying facts were as follows in the President’s summation:

For the background I can do no better than to quote from Baker J’s judgment (paras 2-6):

“2 D was born on 11th December 2011 and is therefore now aged 2½. His mother was assessed in 2012 as being on the borderline of a mild learning disability. His father was found to have a more significant cognitive impairment, with an IQ of around 50. In the earlier proceedings described below, a psychological assessment concluded that he lacked capacity to conduct litigation. He has, however, managed to function successfully in his adult life, with some assistance from local authority adult social services. He has worked in the same job for over 12 years and has been contributed towards the financial support of the family.

3 When D was born, the local authority started care proceedings under s.31 of the Children Act 1989. After he was discharged from hospital, D and his parents underwent a 16- week residential placement in a local authority foster placement which was completed successfully. Afterwards, the family moved into a new home with a package of support from the local authority and other agencies. They have extended family on both sides to whom they are close, and a network of friends. They attend a local church. In the summer of 2012, the parents were married.

4 At the final hearing of the care proceedings, the local authority’s care plan, dated [28 September 2012] recorded that D had been in his parents’ care since birth and was settled, happy and developing. It recommended that D remain in their care under a full care order. That order would be subject to review after a year when it was thought it might be appropriate to move to a supervision order. The plan specified the level of professional support to be provided for the family. It further provided that, if the placement broke down, D would move initially to a foster placement. The local authority would then carry out a viability assessment of his maternal grandparents to see if they were able to look after him, although an assessment carried during the care proceedings had concluded that they were not.

5 The care plan was endorsed by the children’s guardian. In her final report, she indicated that, while she supported whatshe described as the local authority’s “courageous attempts” to try to enable D to be looked after his parents, she was “not yet entirely confident that they will be able to provide D with the safe, emotionally attentive care that he will need on a long term basis.” She identified “a number of risk factors in D’s care circumstances which can be monitored but not removed or effectively counteracted by the considerable support and monitoring resources that have been and are continuing to be provided.” She thought that, as D becomes more mobile, these risk factors would be more difficult to manage.

6 On 7th November 2012, District Judge Cronin made a care order on the basis of the local authority’s care plan. The order included an undertaking by the local authority not toremove D from the care of his parents without giving 7 days notice in advance, unless an emergency situation should arise.”

I should add that the part of the care plan referred to by Baker J in para 4, went on tosay that “if … the outcome of the … assessment is that [the maternal grandparents] arestill not viable carers for D, then the local authority will seek permanence for D through adoption.”

So far as material for present purposes, subsequent events can be stated quite shortly. On 31 March 2014 the local authority gave the parents notice that they intended to remove D on 25 April 2014. The father consulted the solicitor, Rebecca Stevens of Messrs Withy King, who had acted for him in the care proceedings. Having applied unsuccessfully for public funding, Ms Stevens agreed to represent him pro bono. She has done so ever since. On 11 April 2014 Ms Stevens filed an application on behalf of the father seeking the discharge of the care order in accordance with section 39 of the Children Act 1989. On 22 April 2014 the local authority filed an application for a recovery order pursuant to section 50 of the 1989 Act. Both applications came before District Judge Goddard on 24 April 2014. During the hearing an oral application was made for an injunction to restrain the local authority removing D. The District Judge refused the application for an injunction and made the recovery order. D was removed from his parents the following day, 25 April 2014.

On 29 April 2014 Ms Stevens filed a notice of appeal on behalf of the father. It had been settled by Ms Deirdre Fottrell, also acting pro bono, as she has ever since. The appeal came on before Baker J on 16 May 2014. For the reasons set out in his judgment, he remitted the application for an injunction for hearing by Judge Marshall, but declined to direct D’s return to his parents in the interim. The hearing before Judge Marshall took place on 29-30 May 2014. For the reasons subsequently set out in her judgment, she declined to order D’s return to his parents. On 17 July 2014 the Court of Appeal (Black LJ) refused the father’s application for permission to appeal.

A further case management hearing took place before Judge Marshall on 29 July

The order made on that occasion recited that “This is a case where permanent placement outside the family must be considered as a possible outcome.” In addition to making arrangements for interim contact, Judge Marshall directed that the local authority’s application for a placement order in accordance with section 22 of the Adoption and Children Act 2002 was to be issued by 28 October 2014. She fixed the issues resolution hearing for 5 December 2014. She directed that expert evidence be obtained from an independent social worker, Helen Randall, in a report to be provided by 30 September 2014. On 23 September 2014 Judge Marshall directed that the matter was to be listed before me in London on 8 October 2014.

Ms Randall reported on 26 September 2014. Her report is unfavourable to the parents. Ms Randall said that she was unable to recommend that D be cared for by his parents, that there were no suitable family or friends able or willing to care for him and that her recommendation was that D be adopted.

The matter came on for hearing before me in London on 8 October 2014. The father was represented by Ms Deirdre Fottrell and Ms Marlene Cayoun, instructed by Rebecca Stevens of Withy King. As a protected party the father acted by the Official Solicitor as his litigation friend. The mother was represented by Ms Sarah Morgan QC and Ms Lucy Sprinz, instructed by Goodman Ray. Swindon Borough Council was represented by Ms Hayley Griffiths. D was represented by Mr Kambiz Moradifar. Ms Griffiths and Mr Moradifar were, I assume, being appropriately remunerated – D has legal aid. The others, in circumstances I must describe in more detail below, were allacting pro bono. At the end of the hearing I reserved judgment.

On 28 October 2014, the local authority filed a placement order application under section 22 of the 2002 Act.

Why were the parents not represented by lawyers funded by Legal Aid? The problem was stated in these terms after a recital of the various statutory provisions:

So far as material for present purposes, the effect of all this is clear. Non-means-tested legal aid is available to parents for only two classes of case: first, for care proceedings under section 31 of the 1989 Act; secondly, for proceedings which are, within the meaning of Regulation 5(1)(d) of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, “related to” care proceedings. Given the definition of “related to”, neither the local authority’s application under section 50 of the 1989 Act, nor the parents’ application under section 39, nor the local authority’s application under section 22 of the 2002 Act, is “related to” the previous care proceedings. So in none of them did, or do, the parents qualify for non-means-tested legal aid. Legal aid is, or as the case may be was, available in principle, in accordance with paragraph of Part 1 of Schedule 1 to LASPO, for the applications under sections 39, 50 and 22, but in each case means-tested.

The practical difficulties were summarised as follows:

The parents’ capital amounts in all to a very modest £3,250 or thereabouts, an amount so small that they are not disqualified from legal aid on that ground. The father’s disposable monthly income (his gross income less income tax, national insurance, employment expenses, dependants allowance and net rent) was assessed in May 2014 as amounting to £767.64 and in June 2014 as amounting to £806.94.

The upper limit for disposable monthly income – the amount above which one is ineligible for legal aid – is £733.00. So, the father and the mother are disqualified from receiving legal aid because the father’s disposable monthly income in May 2014 was £34.64 too much and in June 2014 was £73.94 too much.

The father’s modest earnings disqualify him, and therefore the mother, from receiving legal aid. They cannot afford to fund private representation. They are, at present, wholly dependant on the good will of members of the legal profession who, to their enormous credit, and acting in the highest traditions of the profession, are acting pro bono, that is, for no fee and paying their travel and other expenses out of their own pockets.

Indeed, in the case of Ms Stevens she has been prepared to go even further. The father has a learning disability. He is a “protected party” within the meaning of Rule 2.3 ofthe Family Procedure Rules 2010. As a matter of law he is not able, as a protected party, to act without a litigation friend. Quite apart from that, the father’s learning disability in any event requires him to have considerable support and assistance to be able to participate effectively in the proceedings. The Official Solicitor has agreed to act as his litigation friend. The Official Solicitor cannot be compelled to act as anyone’s litigation friend. His practice is to agree to act only if there is funding for the protected party’s litigation costs, because his own budget – the monies voted to him by Parliament – is not sufficient to enable him to fund the costs of litigation of the type the father is involved in. The Official Solicitor was willing to act here only because the father’s solicitor and counsel have agreed to act, thus far, pro bono. But without the protection against an adverse costs order which the father (and derivatively the Official Solicitor) would enjoy if the father had legal aid, the Official Solicitor has a possible exposure to an adverse costs order – for instance, if the local authority was to obtain an order for costs against him – which, understandably, he is unwilling to assume. The consequence is that the Official Solicitor was not willing to act as the father’s litigation friend unless Ms Stevens agreed, as she has, to indemnify him against any adverse costs orders. And as if all this was not enough – indeed, far more than enough – I am told that Ms Stevens has spent in excess of 100 hours, all unremunerated, working to resolve, thus far without success, the issue of the father’s entitlement to legal aid. This is devotion to the client far above and far beyond the call of duty.

The mother, although she has learning disabilities, is not a protected party and therefore does not need a litigation friend. But the considered view of her experienced counsel (I quote from the position statement dated 6 October 2014 prepared on her behalf by Ms Morgan and Ms Sprinz) is that “The personal characteristics, intellectual functioning and limitations arising from learning difficulties which affect each of them [the father and the mother] in different ways … impact profoundly on their ability to represent themselves in proceedings in relation to their son whether at Court hearings or in discussions with professionals associated with or ancillary to those court hearings … It is readily apparent from meeting with [the mother] that she would be wholly unable to represent herself in relation to any aspect of these proceedings.”

The point is elaborated by reference to the difficulties facing the mother at the hearing before Judge Marshall on 29 July 2014, when she was unrepresented (she had been represented pro bono at the previous hearings before Baker J and Judge Marshall). Judge Marshall directed that the mother was to file any evidence she wished to rely on by 19 August 2014. The mother was unable to manage that aspect of the case alone, and has not complied with the order. Because the father is a protected party, he and the mother as a matter of law require separate representation.

I add this. On 8 September 2014 pre-action protocol judicial review letters were sent on behalf of the father to the Legal Aid Agency and to the Lord Chancellor, challenging the decision of the Agency to refuse legal aid and raising issues in relation to the lawfulness of certain aspects of the funding scheme. Similar letters were sent on behalf of the mother on 19 September 2014. The Treasury Solicitor has responded, making clear that any claim will be resisted. The progress of these claims is stymied: the parents are financially ineligible for legal aid to pursue a claim for judicial review, and those who might otherwise be willing to act pro bono for them in judicial review proceedings are unwilling to run the risks of adverse costs orders.

The rest of the judgment is worth setting out largely in full as it raises fundamental points about whether the cuts to Legal Aid have put the United Kingdom in breach of international human rights law:

It is no part of the function of the Family Court or the Family Division to pass judgment on the appropriateness and wisdom of the arrangements that Parliament (or Ministers acting in accordance with powers conferred by Parliament) choose to makein relation to legal aid. The legality, rationality and, where relevant, theproportionality of the scheme, if properly the subject of judicial scrutiny, are primarily the responsibility of the Administrative Court. It is, however, the responsibility –indeed, the duty – of the judges in the Family Court and the Family Division to ensure that proceedings before them are conducted justly and in a manner compliant with the requirements of Articles 6 and 8 of the Convention. That, after all, is what Parliament determined when it enacted section 6 of the Human Rights Act 1998, declaring, subject only to section 6(2), that it is “unlawful” for a court to act in a way which isincompatible with Articles 6 and 8.

In Q v Q [2014] EWFC 7, paras 12, 15-16, I pointed out that Rule 1.1 of the Family Procedure Rules 2010 requires the court to deal with matters such as those with which I am here concerned “justly” and ensuring “so far as is practicable” that the case is dealt with “fairly” and also “that the parties are on an equal footing.” That, as I observed, is the obligation of the court under domestic law, but it is also the obligation of the court under Articles 6 and 8 of the Convention. I went on to make the point that as long ago as 1979, in the well-known case of Airey v Ireland (Application No 6289/73) (1979) 2 EHRR 305, the European Court of Human Rights had held that there could be circumstances in which, without the assistance of a legally qualified representative, a litigant might be denied her Article 6 right to be able to present her case properly and satisfactorily. I referred to Mantovanelli v France (Application No 21497/93) (1997) 24 EHRR 370 as indicating the significance of the right to an adversarial hearing guaranteed by Article 6 specifically in the context of an expert’s report which (as here with Ms Randall’s report) is “likely to have a preponderant influence on the assessment of the facts by [the] court.” See further Q v Q, Re B (A Child), Re C (A Child) [2014] EWFC 31, paras 45-49.

Given the parents’ difficulties in the present case, I need to refer to the more recent decision of the Strasbourg court in RP and others v United Kingdom (Application No 38245/08) [2013] 1 FLR 744, the aftermath of proceedings in the Court of Appeal, reported as RP v Nottingham City Council and the Official Solicitor (Mental Capacity of Parent) [2008] EWCA Civ 462, [2008] 2 FLR 1516, in which a mother with learning difficulties, who lacked capacity to litigate, failed in her endeavour to have a placement order in relation to her child set aside.

I draw attention to what the Strasbourg court said in paras 65-67 (citations omitted):

“65 In cases involving those with disabilities the court has permitted the domestic courts a certain margin of appreciation to enable them to make the relevant procedural arrangements to secure the good administration of justice and protect the health of the person concerned. This is in keeping with the United Nations Convention on the Rights of Persons with Disabilities, which requires States to provide appropriate accommodation to facilitate the role of disabled persons in legal proceedings. However, the court has held that such measures should not affect the very essence of an applicant’s right to a fair trial as guaranteed by Art 6(1) of the European Convention. In assessing whether or not a particular measure was necessary, the court will take into account all relevant factors, including the nature and complexity of the issue before the domestic courts and what was at stake for the applicant.

66 It is clear that in the present case the proceedings were of the utmost importance to RP, who stood to lose both custody of and access to her only child. Moreover, while the issue at stake was relatively straightforward – whether or not RP had the skills necessary to enable her successfully to parent KP – the evidence which would have to be considered before the issue could be addressed was not. In particular, the court notes the significant quantity of expert reports, including expert medical and psychiatric reports, parenting assessment reports, and reports from contact sessions and observes the obvious difficulty an applicant with a learning disability would have in understanding both the content of these reports and the implications of the experts’ findings.

67 In light of the above, and bearing in mind the requirement in the UN Convention that State parties provide appropriate accommodation to facilitate disabled persons’ effective role in legal proceedings, the court considers that it was not only appropriate but also necessary for the United Kingdom to take measures to ensure that RP’s best interests were represented in the childcare proceedings. Indeed, in view of its existing case-law the court considers that a failure to take measures to protect RP’s interests might in itself have amounted to a violation of Art 6(1) of the European Convention (emphasis added).”

I draw attention in particular to the words I have emphasised.

The parents’ predicament

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

In addition to these fundamental problems there are a number of more practical but very important points:

i) I have already noted that those working pro bono for the parents are not merely working for no fee but also having to pay their travel and other expenses out of their own pockets and, in the case of Ms Stevens, agreeing in addition to indemnify the Official Solicitor.

ii) There is also the problem that the parents do not have the money to travel to court unless it is very close to home. The very practical question of how the parents were to pay the cost of coming to court in London for the hearing on 8 October 2014 was resolved only because the local authority agreed, but explicitly without any future commitment, to make an ex gratia payment.

iii) The mother and the father may require the use of an intermediary, not merely in the court setting but also, for example, when meeting professionals out of court. An intermediary at court is paid for by Her Majesty’s Courts and Tribunals Service: see Q v Q, Re B (A Child), Re C (A Child) [2014] EWFC 31, para 52. But who is to pay the costs of any intermediary whose use is necessary for the purposes of meetings with professionals out of court?

The way forward

I am conscious that, in expressing myself as I have, I have not thus far had the benefit of argument from anyone other than the parties. In particular, I have had no argument from any emanation of the State other than the local authority. My conclusions must to that extent be provisional. If the State wishes to challenge my conclusions, especially as I have set them out in paragraph 31 above, then let the State do so. I shall of course be willing to hear further submissions from any interested State party, or indeed any other interested party.

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 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 ofChildren’s Services, inviting each of them to intervene in the proceedings to makesuch 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.

Postscript

The preceding part of this judgment was sent to the parties in draft on 28 October I was subsequently informed that the situation in relation to legal aid has moved on since the last hearing but has not been resolved. The Legal Aid Agency has reassessed the father’s means and has granted an emergency certificate, limited at this stage to the hearings in May and July 2014 and subject to agreement to pay a contribution of £133.77 from capital and £96.38 each month from income. That offer has been accepted and the first instalment has been paid to the Agency. The issue of legal aid in relation to the proceedings with which I am concerned has not yet been resolved. It needs to be, before the next hearing, which is listed before me on 13 November 2014.

Strong stuff: but it puts into stark relief the problems for the administration of justice caused by the retreat of the state from funding lawyers and the curtailment of the Legal Aid scheme. In such cases there is no alternative funding: no LEI, and no “winner” which is why CFAs remain banned in criminal and family proceedings on grounds of public policy.

It also raise interesting questions about the futility or otherwise of Parliament granting rights of action in the civil courts to disabled people under the Equality Act 2010, but through the reforms of LASPO 2012 making such actions impossible to fund, absent a  QUOCS scheme for such cases.

The problem is not going to go away: and the issue is going to come back before the courts sooner rather than later.

 

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