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/ 07 Aug 2014

Who Pays When Nobody Else Can?

Yesterday, the Family Court quietly handed down a judgment that may have far-reaching legal and political consequences for the Family Justice System.

On the 1 April 2013 there was a paradigm shift in family law. From this date, Legal Aid was abolished in all but exceptional circumstances for parents who dispute the arrangements for their children. As a result, it has been estimated that 57% of all parents who resorted to the courts in the past year did so without a lawyer.

This decision concerned three separate cases: Q v Q; Re B (A Child) and Re C (A Child). The facts need not be explained in full, but it suffices to say that each case concerned a dispute between parents where at least one parent was unable to afford a lawyer. The court was faced with answering the difficult question, who pays when a party without legal aid cannot afford something that is necessary to ensure a fair outcome?

Sir James Munby, President of the Family Division, outlined four difficulties that arise when no legal aid is available to parents:

– They cannot afford legal advice in preparing proceedings.

– They cannot afford professional representation at court.

– They cannot afford to bring to court expert witnesses that might assist their case.

– If English is not their first language, they cannot afford for documents to be translated into their native language.

So, how are these difficulties to be dealt with?

The court started by pointing out that the government has decided how the courts should be run by imposing a set of rules on it. In family cases, these are called the Family Procedure Rules. Rule number one states that court must ‘deal with cases justly, having regard to any welfare issues involved’.

The court then reminded itself that there is an obligation on the State under Article 6 of the European Convention on Human Rights to ensure that everyone has a fair trial. Importantly, Article 6 guarantees the right of ‘practical’ and ‘effective’ access to justice. As an organ of the State, the court is also bound by this obligation.

The court continued, explaining that, as the obligation is on the court to ensure that justice is done, it is the court that should pick up the cost where a litigant is unable to afford it: ‘if there is no other properly available public purse, that cost has, in my judgment to be borne by the court’. As a result, Her Majesty’s Courts and Tribunal Service (HMCTS), the government body responsible for court administration, will have to pick up the cost in these cases.

This does not, however, mean that such funding will be available for all parents. Quite the opposite. The facts of these cases were exceptional, involving the gravest of allegations that needed to be dealt with fairly. Moreover, the court only directed that very specific costs should be funded by HMCTS.

Nevertheless, this case shows that the judiciary are willing to make bold, and potentially controversial, decisions to ensure that parents have a right to access justice. This can only be a good thing. Let’s hope that it works.

If you need advice or representation on any matters concerning contact disputes or indeed any aspect of family breakdown then the family law solicitors here at Hanne & Co can help. We offer competitive rates. Please call us on 020 7228 0017 for more information.

Thomas Wilson

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