The child’s welfare, right to a family life and a fair trial

In JG v Lord Chancellor and ors [2014] EWCA Civ 656 the Court of Appeal considered the grant of legal aid for a child in terms of the welfare of a child (rather than in the cold mercenary terms employed by Ryder J (ahtw) in Re JG (a child by her guardian) v Legal Services Commission and ors [2013] EWHC 804 (Admin), who had found for the Lord Chancellor at first instance). This article looks at the case as one concerned with how legal aid may be obtained for children proceedings; for this is the positive message to come out of the Court of Appeal’s firm reversal of Ryder J’s decision. An earlier article (see looked at the case for the law which JG overlooked, and what therefore remains open for children advocates seeking legal aid, to argue in the future.

The Court of Appeal held that the Legal Aid Agency (‘LAA’) was not entitled to refuse the child’s application in October 2008 for funding of a psychotherapist’s report for use in proceedings by the child’s father under Children Act 1989 s 8 (residence or contact). The decision of the Legal Services Commission (‘LSC’: now LAA) was declared unlawful (para [130]). Black LJ concluded on the ‘fact specific grounds’ (para [131]) that:

[129] As I see the … order for the instruction of the expert as in fact made at the instigation of the guardian on the child’s behalf, I do not share Ryder J’s view that the order made in April 2009 fell foul of [LASPOA s] 22(4)….

[130] I would therefore allow the appeal against Ryder J’s dismissal of the child’s judicial review claim and substitute a declaration that the LSC’s decision not to meet the cost of the expert’s report was unlawful.

LAA decision-making: the welfare of the child

In children law terms Black LJ started her assessment of the ‘law framework’ of the case from CA 1989 s 1(1) which she said must be kept ‘well in mind’ (Ryder J had not mentioned CA 1989 s 1 at all). Child welfare marks out family proceedings from other civil proceedings.

[34] … even if the child is not joined as a party to the family proceedings, he or she is a powerful presence in them because his or her welfare dictates the outcome, which may turn out to be different from that contended for by the parents. In order to determine what will serve the child’s welfare, the court needs information so that it can identify and evaluate the options. Some of the information comes from the parents themselves but the court may need information from a more independent or expert source. A welfare report commissioned under section 7 of CA 1989 is one way to acquire this information (see below) but such a report is not always sufficient.

Black LJ said (at para [35]) that, ‘as a family lawyer’, she found the response from the LSC ‘extraordinary’: ‘This case’, the LSC had said, ‘is clearly [the father’s] application for residence’. On that basis, the LSC continued, with their own special brand of children law, the father ‘should pay for the reports [or] the status quo of the mother having residence should continue’. Black LJ commented on this approach thus:

[35] … Such an approach is readily understandable in the context of, say, a civil action for damages; the claimant has to prove his case and unless he pays for and produces such expert report as is necessary, he will fail to do so. However, the reality in children proceedings, where the court is without a necessary expert report, is not that a residence order is simply granted to the mother by default. The court still has to consider the merits and determine what is in the child’s best interests but it will have to do so without the benefit of the expert help that it considered was necessary to assist it in its task.

Black LJ explained further the importance of CA 1989: that s 1(2) imported the principle that delay was likely to be prejudicial to the child; and that s 1(3) sets out factors the court should take into account when deciding whether to make, vary or discharge a CA 1989 s 8 order. None of these had been touched upon by Ryder J below.

Exceptional case: a Convention consideration

Black LJ turns to ‘Convention considerations’ at [95]. Like most of her judgement this was obiter (as she herself accepted: see para [66]) and subjects what she calls the ‘normal order’ for payment of a jointly instructed expert’s expenses by apportionment between both or all parties equally to a Convention assessment derived from the Lord Chancellor’s (per LAA) conditions: that a party cannot pay his/her share of the cost; that the ‘normal order’ would involve a breach of a party’s Convention rights; and the case must be ‘very exceptional’ (the LAA terminology) and to bring it within the terminology of LASPOA 2012 s 10. (As explained in this is a controversial point in itself; but it was not a finding in law on which Black LJ based her decision).

Before looking at Black LJ’s Convention assessment it is appropriate to set out s 10 (as she does at [63]). Under the heading ‘Exceptional cases’, s 10 enables the LAA to grant a certificate if:

(2)… (a) [it] has made an exceptional case determination in relation to the individual and the services, and (b) [it] has determined that the individual qualifies for [civil legal] services…

(3) For the purposes of subsection (2), an exceptional case determination is a determination –

(a) that it is necessary to make services available to the individual under this Part because failure to do so would be a breach of –

(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or

(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or

(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

For the purposes of the court’s decision Black LJ rejected the Lord Chancellor’s argument that s 10 applied to JG; but she did so in terms which may shed an important light on the way in which she might see s 10 in the future were a s 10 issue to come before her:

[110] … whatever the immediate impact on the reader of the reference in section 10 to an “exceptional case determination”, the definition in section 10(3) makes it clear that “exceptionality” is not in fact an extra requirement and that what lies beneath the label is simply that if the services are not made available to an individual, there would (or sometimes might) be a breach of his Convention rights. I see no more justification for introducing a specific exceptionality requirement in the context we are considering here than the draftsman appears to have seen in relation to section 10 and it seems to me that it would distract attention from the central question. Granted, we are concerned with a departure from the way in which the court would otherwise have catered for the costs of the expert, so to that extent the order would be exceptional. That is a description, however, not a test or an additional hurdle.

The circumstances of the case might be ‘exceptional’ in the sense of ‘unusual’, but it did not involve the courts in importing s 10 exceptionality into the decision-making process in JG.

Convention rights

The court accepted ‘impecuniosity as read’ (para [96], with further consideration at [111] – [118]). The second only of the above LAA factors – ‘Breach of Convention rights’ (paras [96] – [109]) – therefore need to be considered by the court in this obiter discussion. This is likely to be the battle ground for legal aid applications. (It is disappointing thus to describe decision-making in family law cases, but this tends to accord with the macho approach of LAA’s minister and their own modern ethos.)

Black LJ expressed surprise that not more was made by the parties of the child’s Art 6 (right to a fair trial) rights. She expected perhaps that the Art 6 aspect of the child’s claim might be argued further in the future (see italicised passage below). Her own view on Art 6 was:

[98] I would have expected that the parties would have joined battle over Article 6 in this case, arguing perhaps that the genuine and effective enjoyment by a child of his or her right of access to the court was not secured unless he or she was not only granted legal representation but also enabled to secure and present the evidence that was “necessary to assist the court to resolve the proceedings”….

[99] Given the status of all that I have to say on the general question, I do not intend to dwell on Article 6 of my own motion but I am not convinced that it has materially less to contribute to the resolution of the issues in this case than Article 8 and I certainly do not think it could be said to be irrelevant given that the specific challenge in this case was to the decision of the LSC to refuse funding. Accordingly, I would not wish to be thought to be ruling out reliance on Article 6 should points arise in future which are similar to those which have arisen here.

Black LJ’s position on Art 8 may be said to start from two propositions:

(1)   That cases in which a child is joined are, in any event, by no means ‘commonplace’; and that

(2)   Once a guardian:

[109]… has endorsed the instruction of an expert as appropriate and the court itself has approved it as necessary, there will be the beginnings of a strong foundation for an argument that the child’s Article 8/Article 6 rights will be violated if the court cannot be provided with that expert assistance. Whether the argument will ultimately succeed will depend, of course, upon the precise nature of the decision to be taken in relation to the child.

She floated the idea that the very fact that the court held a report to be ‘necessary’ (now Children and Families Act 2014 s 13(3)) ‘would inevitably involve a violation of Art 8’ (para [104]), but rejected this since each case was so fact dependant; and she drew attention to the failure of the Lord Chancellor’s arguments in that they tended to concentrate on the parents’ Art 8 rights:

[107] … It seemed to me that they did not sufficiently accommodate the special dynamic of children proceedings in which, by virtue of the welfare principle (see §32 above), the court is searching for what is in the best interests of the child, irrespective of the parents’ cases.

The child-centric European Convention 1950 jurisprudence (eg Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593; H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25, [2013] 1 AC 338) was not considered here in terms. Where the balance is fine – Black LJ did not find it so in JG – then in an assessment of the Art 6 or Art 8 balance ‘sequencing’ of rights under such jurisprudence may be called for.

Fact specific decision-making; and a reasoned decision

The decision to find unlawful the LAA refusal to fund unlawful was disposed of relatively easily. The wider issues debated by the court raise more for children and practitioners for the future. Each case will depend very much on its individual facts. Before all is the child’s welfare alongside his/her Art 8 – and perhaps Art 6 – rights (see also Collins J below). Black LJ concentrates on the rights and welfare of the child for all cases where a child is involved – including a refusal under LASPOA 2012 s 10.

The welfare of any child concerned is the starting point for any LAA decision-making; and the basis for a challenge to any wrong decision by an applicant. And Collins J in R (ota T) v Legal Aid Agency & ors [2013] EWHC 960 (Admin) (decided 3 weeks after JG at first instance, but not cited in the judgement) sounds an important reminder. Any refusal by the LAA must be backed by reasons:

[14] … While there is no statutory requirement for reasons to be given by the defendant, the law has developed to require reasons where fairness so dictates. Cases such as these where children may be removed from parental care involve Article 8 of the ECHR and the welfare of the child which is paramount. There is an obvious requirement that all proper steps are taken to enable a judge to reach an informed decision when dealing with those rights. The parties and the court are in my view clearly entitled to understand why a refusal to allow what the court has considered necessary has been made so that it can, if appropriate, be challenged speedily.

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