Tag Archives: cuts

President of the Family Division’s Anger at Legal Aid Cuts

The President of the Family Division, Sir James Munby, was faced with a case where the parents wanted to oppose the removal of their child from their care and place him for adoption.  In circumstances like this, care proceedings would be issued and funding available for the parents, however, this is a case where care proceedings were concluded in November 2012.  When the care order was made there were concerns about the child remaining with his parents as both had learning difficulties, however, following an intense assessment and package of support the local authority’s plan was for the child to remain in his parents care with further assessments carried out in relation to the extended family.

One aspect of a final care order is that it gives the local authority parental responsibility for the child, alongside his parents, however, if they had concerns about the care the child was receiving from his parents then they had the power to remove him from his parents care.  Unfortunately in March 2014 the local authority had concerns and therefore gave the parents one month’s notice of their intention to remove the child from their care.

In these circumstances there is no automatic right to funding.   The parents need to provide details of their income to see if the are eligible for funding.  In this case the parents were £34.64 over the threshold set by the Legal Aid Agency.

This is the issue that the President had; proceedings had been brought by the local authority to separate the parents from their child, as they were not care proceedings the parents were not eligible for funding automatically and their income was too high for them to qualify for legal aid.  The parents had the option to pay for a solicitor privately but their limited income made this impossible.  The local authority had funding in place to instruct a solicitor and the child was granted funding automatically as well as he has no income.

In his judgment the President stated;

“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…..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 [European convention on human rights]; it would be a denial of justice. The child is also entitled to a fair trial…..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 [its] 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.”

Samantha Sanders, a lawyer at the Adoption Legal Centre, commented

“This is unfortunately something we are seeing on a daily basis; clients who require our help and support to enable their families to stay together, yet without the support of legal aid they are unable to fund it themselves.  More and more solicitors are doing the work on a pro bono basis with no guarantee that funding will ever be made available.

New guidelines were brought in so that a decision is made as soon as possible for a child, yet if funding is not available for the parents to challenge the decisions made in relation to their child, it does questions the validity of the decisions made by the court and whether they are compatible with Article 6 (right to a fair trial) and 8 (right to a family life) of the Human Rights Act.  I believe that this is an issue we will be seeing more and more as time goes on.”

The judgement of the President, Sir James Munby, in this case can be found here.

The team at the Adoption Legal Centre are specialists in advising both adopters and potential adopters. We can help when adopters are facing challenging problems. If you require legal advice, please contact us on 01484 538421 or via e-mail.

Nigel Priestley Meets Minister of State for Justice and Civil Liberties

Nigel Priestley, Senior Partner at Ridley & Hall recently met Rt Hon Simon Hughes. In December 2013 Mr Hughes was appointed as a Minister of State for Justice and Civil Liberties. The meeting followed an invitation from the Minister to discuss the issues facing family practitioners and the courts.Nigel Priestley (right), Rt Hon Simon Hughes (left)

Mr Priestley commented “We discussed a number of issues. I stressed that cuts to civil legal aid have undoubtedly caused a significant increase in the number of litigants in person in court – people who can’t afford a solicitor.

“There has been a significant increase in the number of litigants in person. I find that out when I talk to colleagues who appear before district judges. It’s having an effect on the bottom rung of justice. It is particularly acute in family cases as two people are required to be adversarial. Lawyers could in the past have helped to resolve difficulties between parties.

“The saving the government thought it would get by not having lawyers has to be counter-balanced by the increase you have to have in court time.

“The government needs to set in motion further consideration of the rights of cohabitees when there is a breakdown of their relationship. Too many people who do not marry believe they have the same rights to sort out assets as those who are divorced. This simply isn’t the case.

“It was a useful meeting and it was a privilege to be invited.”