Family courts system is “neither compassionate nor humane”

Blog

12 Jan, 2015

Sir James Munby, the most senior family judge in England and Wales, has blasted the family courts system, saying that parents could be forgiven for believing that they are trapped in a system that is “neither compassionate nor even humane”.

The judge made the comments when handing down his judgment in a case where a couple was unable to obtain legal aid to assist them in fighting the proposed adoption of their young son.

A parent’s right to “put their case” is one of the oldest principles in English Law

Sir James Munby has been presiding over a case where a three-year-old boy was removed from the care of his parents nine months ago by Swindon Borough Council. The boy, who has remained anonymous throughout proceedings, was placed into temporary foster care, with the Council looking to have him adopted. The child’s parents, who both have learning difficulties, have been trying to fight to get their son back, or alternatively, for him to be allowed to live within their wider family network.

However, the couple was deemed not eligible to receive legal aid, despite being unable to represent themselves. The father who is said to have a “more significant cognitive impairment” than the boy’s mother, with an IQ of about 50, holds down a steady job and earns a “modest wage” of up to £804 per month. Accordingly, the couple were unable to receive legal aid funding, which is limited to people with an income of less than £733 a month.

After initially raising concerns in October 2014, Munby adjourned the Council’s case in November and wrote to the Legal Aid Agency about the funding situation. He described it as “unthinkable” that parents should have to face a local authority’s decision to permanently remove their son from their care without proper representation, arguing that a parent’s right to “put their case” forward is one of the oldest principles in English law, dating back over 400 years. He said he was “profoundly shocked” that the couple had not qualified for legal aid, yet did not have sufficient funds to pay for representation, leaving them in a “shocking predicament” that raised significant human rights issues.

Sir James Munby publicly commented “whatever the administrative excuses, the human reality is that a little boy has been separated from his parents pending a final decision for far too long – and for a period which is manifestly excessive”.

Justice Minister confirms some funding now offered

After Sir James suggested that Justice Secretary and Lord Chancellor Chris Grayling should individually consider the couple’s case, Justice Minister Shailesh Vara wrote to the judge to explain Grayling’s position:

“I acknowledge that in this case, the parents have faced considerable uncertainty for some time over the legal aid position. However, it is a necessary feature of means and merits testing that legal aid cannot be made available until information has been provided which shows that the statutory tests have been met.”

After the details of the case were made public, the Legal Aid Agency sought further information on the parent’s finances, and eligibility for legal aid was reassessed.

Vara has now confirmed that the couple have been offered legal aid, subject to them paying a contribution of £133.77 from their capital, along with payments of £96.38 a month. With the legal aid issue seemingly resolved, a final hearing to determine the young boy’s future is set to take place in February 2015.

At IBB Solicitors, we have family law specialists experienced in defending the rights and well being of children, particularly when families disagree over the care of children under the age of 16, or if the local authority becomes involved in a child’s welfare.

Our childcare solicitors recognise that cases need to be treated with care and compassion to minimise the distress that can be caused to vulnerable children.

If a local authority has issued care proceedings in relation to your children you are entitled to free legal advice. If your finances are limited you may also qualify for Legal Aid. Find out more by going to our legal aid solicitors page.