One of the judgments (D (A Child)) was handed down by Sir James Munby, The President of the Family Division (the man in charge of the Family Court). It was not the first judgment he has published in this case, which involves the proposed adoption of a child of parents both of whom have learning disabilities, the father to such an extent that he lacks capacity to instruct solicitors. Their income exceeded the upper limit for qualifying for legal aid by £73.94 a month and as a result they found themselves in a
"situation where, to repeat what I have said before, it is unthinkable that they should have to face the local authority's application without proper representation."
As it happens by the time of the hearing reported in the judgment some funding had been granted (the day before) but The President feels compelled to comment on the delay caused by the wrangles and repeats what he had said in an earlier judgment that not to provide representation 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."
A parent facing the permanent removal of their child must be entitled to put their case to the court, however seemingly forlorn, and that must surely be as much the right of a parent with learning disabilities (as in the case of the mother) or a parent who lacks capacity (as in the case of the father) as of any other parent. It is one of the oldest principles of our law – it goes back over 400 centuries to the earliest years of the seventeenth century – that no-one is to be condemned unheard. I trust that all involved will bear this in mind."
So the judge, His Honour Judge Bellamy, considered how to resolve the impasse. He rejected the argument that the father could afford to pay for representation and was choosing not to, commenting that
"Whereas inability to pay for legal representation is demonstrated by having a disposable income below the maximum allowed by the Regulations, it does not follow that ability to pay is demonstrated by having a disposable income above the maximum provided for by the Regulations. The person with a disposable income of £734 per month falls on the wrong side of the divide so far as financial eligibility for legal aid is concerned. However, it would be absurd to suggest that such a person is better able to meet his own legal fees than his neighbour with a disposable income of £733 per month."
He also decided that it was not appropriate for him to question the witness in this case as it would breach Article 6 & 8 human rights.
So he needed an answer and found it in the examples of interpreters, intermediaries and lip readers who could all be paid for by Court Service funds. Extending that logic he decided that a representative could be appointed to undertake the cross-examination and then goes on to set out some principles that could be followed in similar cases (below).
Whether his reasoning, pragmatic as it is, will pass the test of time remains an open question but the case does show that judges are being increasingly inventive in their interpretation of the rules where there is a real threat of injustice.
(a) It is the first duty of judges sitting in the Family Court to ensure that proceedings are conducted fairly (FPR 2010 rule 1.1). Failure to do so may lead to the court itself acting unlawfully (s.6(1) of the Human Rights Act 1998).
(b) Where a party is unrepresented (whether because legal aid is not available or by choice) and is 'unable to examine or cross-examine a witness effectively' the court has a duty to assist that party (s.31G(6) of the Matrimonial and Family Proceedings Act 1984). This requires the court 'to put, or cause to be put' questions to a witness.
(c) The court will itself put questions to a witness if it is satisfied that it is 'necessary and appropriate' to do so. It will not normally be appropriate to do so when the case involves issues which are grave and/or forensically complex.
(d) Where the court is satisfied that it is not 'appropriate' for the judge to put questions to an alleged victim, the court must arrange for (cause) a legal representative to be appointed to put those questions.
(e) The court may direct that the costs of the legal representative be borne by HMCTS.
(f) The court may nominate the legal representative who is to be appointed to undertake that task.
(g) The extent of the work to be undertaken by a legal representative so appointed should be made clear at the outset and should be proportionate.
(h) In those limited cases where legal aid is still available in private law Children Act proceedings there is a detailed regulatory framework governing the calculation of costs payable to (claimable by) a solicitor for undertaking such work. The fees payable by the Legal Aid Agency are less than a solicitor might charge a privately paying client for doing the same work. That has always been so. I can see no cogent argument for suggesting that a legal representative appointed by the court should be entitled to a higher rate of remuneration than if that work were undertaken under the legal aid scheme.