Courts May Pay for Legal Representation if the Legal Aid Agency Refuses to Provide It

Sir James Munby, the President of the Family Division of the High Court, has ruled that the court service should pay for people’s lawyers if the Legal Aid Agency refuses to provide them, in order to ensure justice is done.

Sir James’ ruling covers three separate unidentified family cases, titled Q v Q, Re B (A Child) and Re C (A Child), in which none of the fathers wishing to play a part in the life of their child had lawyers to argue their cases, while the mothers received public funding to pay for legal representation.

MoJ considering the judgement

Previously, in the case of Q v Q, Sir James had asked Chris Grayling, the Justice Secretary, to explain how the case could proceed without legal aid. Sir James said the problems with the cases somewhat pre-date the Government’s legal cuts. However, he added that “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.

In the Q v Q case legal aid was withdrawn after the LAA ruled that the father had no prospect of winning his access case, commenting that providing any legal assistance would be a misuse of public funds. In his concluding statement on the Q v Q case, Sir James said: “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 (HMCTS) 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.”

In the other two cases, Re B (A Child) and Re C (A Child), Sir James made similar rulings, arguing that unless the fathers are granted 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.

“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,” he stated.

A spokesman for the Ministry of Justice said they are considering the judgements.

Legal Aid Cuts force a rise in self representation

Meanwhile, critics have warned that Government cuts have left family courts at “breaking point”, after official figures showed that nearly 20,000 British parents were forced to represent year before the family courts following the legal aid cuts. It is argued that the large number of unrepresented parents has led to courtroom delays as well as serious concerns about access to justice.

Reflecting on the data, Sadiq Khan, the Shadow Justice Secretary, commented “Not only does it cost the system more money when people turn up in court without a lawyer as the whole process is much slower, but the experience for those concerned can be traumatic and harrowing.”

Family break-ups are traumatic for adults, and children in particular. At IBB Solicitors, we’re here to help you resolve divorce and separation issues as swiftly and sensitively as possible with caring, compassionate advice and representation. We will always give you practical and honest advice and protect your interests robustly should there be court proceedings.

We can provide initial short family law consultations at a reduced fixed fee, where our expert advisors will be able to give you initial guidance on ways to resolve family disputes, either through mediation or individual representation. We will always provide you with cost estimates at the start and throughout your case.

If you would like to discuss any aspect of family law, are considering divorce proceedings or a trial separation, or want to draw up a pre or post-nuptial agreement, call us in absolute confidence on 01494 790058 or 01494 790047. Alternatively, email us at familylaw@ibblaw.co.uk.