At the limits of family proceedings


A haul of very recent family law children cases throws up four which are at the extremes of family law procedural provisions; and in only one was the main adult party to proceedings represented under a legal aid certificate (it seems). Each case would try the abilities of most seasoned family lawyers; and yet it is intended by the present Lord Chancellor and Ministry of Justice that justice be achieved in such cases as these, either because (as in A Father v SBC (below)) lawyers are willing to act free (pro bono)) or by leaving the parties and the judges to do their best together (see Matrimonial and Family Proceedings Act 1984 s 31G(6) (below)).


In A Father v SBC, A Mother and DE (by his children’s guardian) [2014] EWFC 6 a 2½ year old child was placed with his parents subject to a care order. His mother has a mild learning disability, and the father has significant cognitive impairment. Both had been able to care for the child; though the local authority’s concerns increased to a degree where they decided that DE must be taken back into their care. The father’s care proceedings solicitor was unable to secure legal aid and therefore issued an application free seeking discharge of the care order. On consideration of the application the district judge suggested that the father should have applied for an injunction under Human Rights Act 1998 s 8(1) (restraint of ‘unlawful’ acts of a public authority); but he then refused an injunction and refused the father permission to appeal. The child was removed next day. On granting permission to appeal, Baker J said the district judge had applied the wrong test and proceeded to explain his view of the law by reference to Children Act 1989 and to HRA 1998 s 8 (paras 22 to 27), and a variety of case law (para 28 to 36), including the critical House of Lords case of Re S (Care Order: Implementation of Care Plan); Re W (Care Order: Adequacy of Care Plan) [2002] UKHL 10, [2002] 1 FLR 815 which confirmed that if a local authority breaches Art 8 (respect for private life) then, as here, an application would lie to the court.


In North Somerset Council v LW, TC and EW (by her children’s guardian) [2014] EWHC 1670, Keehan J invoked the court’s inherent jurisdiction to refuse production to the disturbed mother of the local authority’s care plan that her baby should be removed at birth, on the basis that if the mother had learned on the plan she might harm herself and her child. He also made the ‘draconian order’ of reporting restrictions and an interim care order.


An NHS Foundation Hospital v P [2014] EWHC 1650 saw Baker J order that a 17 year-old should have her wishes to commit suicide overridden and on an emergency basis allowed intervention by doctors and that she be sedated, if need be. This included reliance upon European Convention 1950 Art 2: that a person’s right to life be protected by law.


Q v Q [2014] EWFC 7 found Sir James Munby P sitting in the family court and has attracted press attention, including from the Guardian.[1] The case concerned a father who spoke almost no English and who was said by two opinion witnesses to pose a threat to his son. On that basis his legal aid was withdrawn. The judge speculated then as to the needs of the father if justice was to be done in respect of his application: that his case must be dealt with justly and the parties be on an equal footing (FPR 2010 r 1.1; and European Convention 1950 Art 6(1)); and in his view, there were matters which ‘could properly be challenged, probed, by someone representing the father’. He described an ‘impasses’ in proceedings of this nature.


Legal aid and an impasse


In Q v Q the President throws down a gauntlet to the Lord Chancellor – as he says ‘merely identifying possible arguments’ (para 19). In para 18 he identifies some of these arguments as:


There may be a need in this kind of situation to explore whether there is some other pocket to which the court can have resort to avoid the problem, if it is necessary in the particular case – I emphasise the word “necessary” – in order to ensure a just and fair hearing…


Secondly, he suggests that if only one party is legally aided the cost of the whole case should fall on them (it is not clear how he proposes that that should happen: already represented parties must bear the expense of preparing bundles and no doubt many other costs where another party is unrepresented). Finally, he says:


… It is arguable that, failing all else, and bearing in mind that the court is itself a public authority subject to the duty to act in a Convention compliant way, if there is no other way of achieving a just and fair hearing, then the court must itself assume the financial burden, as for example the court does in certain circumstances in funding the cost of interpreters.


Much of the cost and injustice of the present process is the complications imposed in the family procedural rules by the recent proliferation of practice directions and guidances (the A Local Authority case includes ‘guidance’ approved by the President, and on 5 June 2014 Mostyn J produced a Statement on the efficient conduct of financial remedy final hearings… ‘authorised’ by the President (but not a practice direction which acquires approval by the Lord Chancellor)). These complications alone could surely justify representation with legal aid under the principles in Airey v Ireland (1979) 2 EHHR 533 and Muscat v Malta (2012) Application no 24197/10 [2012] ECHR 1601, because of the sheer complexities of the process imposed by the present family courts administration. This presents an irony of which Sir James seems unaware.


Further he does not draw attention to Matrimonial and Family Proceedings Act 1984 s 31F(6) which bears repetition in this context:


(6) Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to—

(a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and

(b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.


Sir James considered the possibility of effective cross-examination by or on behalf of the father. He recognised constraints on cross-examination by the father by ‘challenge [to] his own expert’ (surely any expert is the court’s ‘expert’: FPR 2010 r 25.3); but went on:


… I am unpersuaded that there are not matters in these reports which could properly be challenged, probed, by someone representing the father.


This was an opportunity for Sir James to recall that Parliament expects judges to perform this cross-examination role ‘in the interests’ (MFPA 1984 s 31G(6)(b)) of the unrepresented party and to recall for all of us – litigants in person and lawyer alike – how this may be done (especially where cross-examination is by a bench of lay justices).


Urgent remedies and exceptional case determinations


These cases provide a cross-over between rights under European Convention 1950, unusual interim and urgent remedies and legal aid. (Only the North Somerset case is likely to have seen legal aid guaranteed. In the parallel North Somerset Council v LW (by her Litigation Friend the Official Solicitor), University Hospitals Trust Bristol and ors [2014] EWCOP 3, Keehan J dealt with costs as between Official Solicitor, a local authority and three NHS trusts (mostly UBHT): the costs statutory provisions run to seven pages of a 14 page judgement: thus do our rule-makers – apparently without a blush – improve the lives of those without mental capacity and of the courts which deal with them.)


Baker J concluded his judgement in A Father v SBC with the following plea:


[51] Finally, this case has highlighted a further major problem. These parents face the prospect of losing their son permanently. If this prospect had arisen in the context of care proceedings, they would be entitled as of right to non-means tested legal aid. It is difficult to see why similar automatic public funding should not be available where the local authority proposes the removal of a child living at home under a care order and the parents apply to discharge that order and for an interim injunction under s.8 HRA. The justification for automatic public funding in care proceedings is the draconian nature of the order being claimed by the local authority. Where a local authority seeks to remove a child placed at home under a care order, the outcome of the discharge application may be equally draconian.


Baker J then recorded that the father’s lawyers were acting pro bono, and that it was unfair on parties that they should only have representation if able to find help in this way. The position here was compounded the particular learning difficulties of the father. In this case the father plainly ‘lacks capacity to conduct the litigation’ (para 53). And as can be seen from the judge’s own meticulous explanation of the law and its cross-over between Children Act 1989, rights and a variety of case law, the law in the case would be at the limits of most family lawyer’s knowledge. The chance of fairness for a parent with learning difficulties is negligible (if fairness requires even a basic understanding of the case you are seeking to present).


The judges do not go on the consider the two cases – Q v Q and A Father v SBC – in the light of Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10 (exceptional case determinations under s 10(3): for a background to this legal aid jurisdiction, see That must be the next step, since on their view of each case the President and Baker J both found a European Convention 1950 aspect: Art 8 and Art 6(1) (in the context of a fair trial in the difficult circumstances posed by both cases); Art 10 and Art 2 in the P case. And, it must be recalled, Art 14 (discrimination) might apply in both Q v Q and A Father v SBC.

[1]; and


Restrictions on publicity and children: naming children


Anyone who tries to work out what is the law of contempt in relation to children proceedings is met by a variety – some might say a jungle – of statutory provision which taken at face value is not easy to unravel. When may a parent post information of Facebook; when may a keen family lawyer relate a case in his or her blog or on Twitter; when may a mature child tell his/her story to the press? The starting point – and often the end-point, with inherent jurisdiction leavening – is Administration of Justice Act 1960 s 12.


In Re J (A Child) [2013] EWHC 2694 (Fam) (a case where a father was extensively publicising information about care proceedings), Sir James Munby P summarised the legislative provisions which restrains publicity in respect of children. He started by pointing out the ‘automatic constraints’ – that is, the statutory constraints – on publicity. Children Act 1989 s 97 prohibits publication, but only till the conclusion of proceedings (Clayton v Clayton [2006] EWCA Civ 878, [2006] 1 FLR 11)); Administration of Justice Act 1960 s 12 is limited to ‘proceedings in private’, including family proceedings, but narrows those proceedings to those in relation to children and only to ‘proceedings before any court’ (para [24]); and Children and Young Persons Act 1933 s 33 which applies only to children who are directly involved in court proceedings eg as parties, witnesses etc.


Statutory and common law provision


The primary statutory and common law limitations on publicity in relation to publicity for children and children proceedings are as follows:


  • Administration of Justice Act 1960 s 12
  • Children Act 1989 s 97
  • Children and Young Persons Act 1933 s 33
  • Inherent jurisdiction of the High Court (Senior Courts Act 1981 s 37; and as extended by County Courts Act 1984 s 37)
  • Crown court: limited powers.


Administration of Justice Act 1960


Administration of Justice Act 1960 s 12(1) operates to make publicity of children cases an exception to the general rule as to open court proceedings, with full publicity:


12 Publication of information relating to proceedings in private

(1) The publication of information relating to proceedings before any court sitting in private shall not in itself be contempt of court except in the following cases, that is to say:

(a) where the proceedings –

(i) relate to exercise of the inherent jurisdiction of the High Court in respect of minors

(ii) are brought under the Children Act 1989 or

(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor…

(2) Without prejudice to the foregoing subsection, the publication of the text or summary of the whole or part of an order made by a court sitting in private shall not in itself be contempt of court except where the court (having power to do so) expressly prohibits publication….

(4) Nothing in this section shall be construed as implying with any publication is punishable as contempt of court which would not be so punishable apart from the section and in particular where the publication is not so punishable by reason of being authorised by rules of court.


Publication of information from the proceedings listed in s 12(1)(a), where the person publishing knows that they are such proceedings, is a contempt (see eg Kent County Council, Re B (A Child) v the Mother [2004] EWHC 411 (Fam), [2004] 2 FLR 142, Munby J); and the same applies to the person to whom the publication is made (eg to a journalist, MP, Minister of the Crown etc). However, s 12(1) does not, on its own, prohibit publication of certain factual information (name, photographs of parties or child or witnesses; or the text of any court order: though in practice eg the name of the child may be ordered not to be published). Conversely s 12(1) prohibits the following (whether or not the documents concerned have been anonymised), says Munby J:


a) accounts of what has gone on in front of the judge sitting in private;

b) documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment (this list is not necessarily exhaustive);

c) extracts or quotations from such documents;

d) summaries of such documents.


Section 12 does not prevent the court from making such necessary injunction orders in its inherent jurisdiction. Munby J stressed this point in Re B: the provisions of s 12 remained subject to ‘any specific injunction or other order that a court of competent jurisdiction may have made in any particular case’. The section imposes statutory limitations, but does not prevent a court taking other steps to restrain or restrict publicity, should these be needed.


Children Act 1989 s 97


Children Act 1989 s 97 (as amended) provides as follows:


Privacy for children involved in certain proceedings:

(2) No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify –

(a) Any child as being involved in proceedings before the High Court, a County Court or a Magistrates’ Court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or

(b) An address or school as being that of a child being involved in any such proceedings….

(4) The court or the Lord Chancellor may, if satisfied that the welfare of the child requires it, by order dispense with the requirements of subsection (2) to such extent as may be specified in the order.

(5) For the purposes of this section –

“publish” includes –

(a) include in a programme service (within the meaning of the Broadcasting Act 1990); or

(b) caused to be published; and “material” includes any picture or representation….

Identification of a child as having been involved in proceedings does not, on its own, necessarily involve harm to the child’s welfare. Sir Mark Potter (in Clayton (above)) explained this as follows:


[51] It is plainly open to be argued in relation to s.97 that, headed as it is “Privacy for Children Involved in Certain Proceedings”, the focus should be on Article 8 considerations and thus a Convention compatible construction should lead to an interpretation in accordance with previous judicial assumption that the wording, though inapt, should be read as extending to prevent publication of any material likely to identify the child as having been involved in the proceedings once complete…. I do not think that, as a generality, it is right to assume that identification of a child as having been involved in proceedings will involve harm to his or her welfare interests or failure to respect the child’s family or private life.


The period of any restriction under Children Act 1989 s 97 cannot last beyond the ‘duration of the proceedings’ (para [52]).


Children and Young Persons Act 1933


Children and Young Persons Act 1933 s 33 provides as follows:


(1) In relation to any proceedings in any court… the court may direct that

(a) No newspaper report of the proceedings shall reveal the name, address, or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom proceedings are taken, or being a witness therein;

(b) No picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid; except in so far (if at all) as may be permitted by the direction of the court.


The limits of this provision were recognised by Cobb J in Z & Ors v News Group Newspapers Ltd (1) [2013] EWHC 1150 (Fam) at paras 27 – 31. Protection only applies to children and young persons involved in the proceedings and ‘who are victims, defendants or witnesses [in those proceedings], but not otherwise’ (para 30). In that case, though the children’s welfare benefits and their alleged disabilities were the subject of the criminal proceedings against their mother, none were covered by s 39.

Inherent jurisdiction


In the High Court and the county court (per Matrimonial and Family Proceedings Act 1984 s 31E(1)), and to the extent that CA 1989 s 97 and s 12 are inadequate, it remains open to the judge – if s/he sees it to be in the best interest of the child – to protect privacy (eg within the terms of European Convention 1950 Art 8) by an injunction which can protect the child (as mentioned in connection with s 12, above). This could be for a much longer period than the conclusion of the case, perhaps throughout childhood. It is open to the child, if s/he wishes, later to apply to vary or revoke the injunction, or otherwise to seek its review by the court (Torbay Borough Council v News Group Newspapers [2003] EWHC 2927, sub nom Re Roddy (A Child)(Identification: Restriction on Publication) [2004] 2 FLR 949 Munby J).


Where the court is asked to exercise its inherent jurisdiction it will have to balance the Art 8 rights of the child against those of the freedom of expression of the press or of others (eg a parent) under Art 10. This was explained by Sir Mark Potter in Clayton v Clayton (above) as follows:


[54] … However, in deciding to make a long-term injunction aimed at restricting the reporting and publication of proceedings involving children, the court is obliged in the face of challenge to conduct a balancing exercise between the Article 8 rights of the child and the Article 10 rights of the parent asserting such right, and/ or, where press or media interest is involved, the Article 10 right to report and discuss the circumstances surrounding, as well as the issues arising out of, a case of public interest….


In so doing the court will consider the principles within the terms of European Convention 1950 rights (Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593). After Re S (Identification), older authorities are of restricted application.


Crown Court proceedings


In R (Trinity Mirror) v Croydon Crown Court [2008] EWCA Crim 50, [2008] QB 770 the Court of Appeal considered the extent to which the Crown Court has power to prevent publicity concerning a child. In that case, a Crown Court judge had made an order limiting reporting restrictions concerning a defendant’s children under Contempt of Court Act 1981 s 11 where the defendant faced allegations that he had downloaded paedophile images. The judge’s order was made for the protection of the defendant’s own children. His jurisdiction to make the order was challenged by the press.


A five judge Court of Appeal held that he had no statutory jurisdiction to do this and that the Crown Court has no inherent jurisdiction to grant an injunction:


[30] …. Unless the proposed injunction is directly linked to the exercise of the Crown Court’s jurisdiction and the exercise of its statutory functions, the appropriate jurisdiction is lacking.


Inherent jurisdiction lies only with the High Court under to grant orders (confirmed by Senior Courts Act 1981 s 37(1)), if such an order is ‘appropriate to be made’ (para [31]).


If the High Court is asked to make an order its dilemma, said the Court of Appeal, was as summarised by Sir Mark Potter P in A Local Authority v W [2005] EWHC 1564 (Fam), [2006] 1 FLR 1, where he said, of European Convention 1950 Arts 8 and 10 (quoted at para [31] of Trinity Mirror):


[31]… each article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary and proportionate to do so in order to accommodate the other. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence over or ‘trumps’ the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided upon the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in terms of proportionality is carried out.


And so the dispersed hierarchy of statutory provision: the starting point remains s 12 bolstered by any need for the court to exercise its inherent jurisdiction (eg to redact any references to a child’s name; perhaps that of a parent or foster parent).


Judge’s low regard for the law

A client (A) asked me today if I could give him certain information so he could manage his own expectations concerning his case. It was a fair question. He wants to release information about a family case he is involved in. He considers he has been unfairly threatened with prosecution by the police because of information provided maliciously (it seems) by the mother of his child. Before I could respond I reflected on the anarchic state of family law as 2014 progresses; and on how difficult it is to advise clearly when the law is held in such low esteem by the judges who should support it.

Prior to the mother’s involvement of the police, in response to a contact application A had filed she was permitted to extend a case management appointment to nearly an hour (he was absent: he lives in Asia) and to file evidence over thirty pages or so (much of it highly critical of A). In all of it there was not a word of the allegations she later made to the police. Was her later contact with the police malicious?

His criminal lawyer failed to obtain permission to release the family court papers; though between the lawyer and the judge they found none of the voluminous law and case work on the subject.

An appeal by A to a Family Division judge has been refused permission, but the judge has agreed for the order not to be drawn up, perhaps with the intention of the judge reviewing his refusal. He will look at a transcript of the short permission hearing. In that hearing:

• He asserted that there is a procedure whereby A’s solicitor should have asked the district judge for further details of her judgement. This is normal practice in the PRFD (it was said). Where information as to this normal practice can be found I have yet to be told.
• The police could have applied to the court for the documents, said the judge. When he was asked by what formal procedure, he moved on quickly.
• His final remark (mentioned also in his short judgement) was to cite a case which supported his refusal of permission; but he will not – or cannot? – provide details of the case.

Near anarchy: uncertainty and misrule

Anarchy is an absence of rules. Near anarchy is some rules but, for the rest, uncertainty (or misrule as it was termed in medieval times). At least with anarchy you know where you are: you’re on your own. With near anarchy, sometimes rules apply, sometimes not. This state of affairs characterises the new family court.

We are told:

• Local practice directions can apply; but presumably – though there is to be a ‘single’ family court – at any time this could change. If practice directions can come in on a whim, perhaps they can disappear or be altered on a whim also.
• Many ‘rules’ now appear in practice directions which emerge without any real democratic accountability, and – like the rules and the practice direction under it for family mediation information and assessment meetings – bear little relation to the statute which put them in place (ie they are probably unlawful)
• Whilst litigants (and their advocates) must tell courts the law on which they rely, some senior family court judges do not, it seems form my example, have to undergo the same discipline.
• Court guidance can be issued at will by judges without any real basis in law or practice (I think hear of documents said to have been ‘illegally’ obtained by one spouse from another: Imerman documents); and parties and their lawyers must follow the guidance regardless of the consequences for them or their clients.

So where does this leave the family lawyer who is asked, entirely understandably, to manage his client’s expectations? I understand and can explain to a client where judicial discretion can be applied. A understands that in the case of the district judge and the judge – who has thus far refused permission have exercised a discretion to refuse. But a judge can only exercise discretion where there is no law, and only when such facts and law which apply to a case have been established; or where the common law or statute sanction an exercise of discretion.

Refusal to release: the Convention balance

In A’s case the district judge did not consider the law. The judge regarded this lack of consideration of the law as a correct approach to the case. He did not consider what the law was (though it was set out for him in a short skeleton argument). If judges refuse to consider and to follow the law; and if in doing so they make up other law (which may or may not exist), we are truly getting to a point of near anarchy in the family court.

Because it is a refusal of permission to appeal (if the judge holds to his view on permission to appeal), the question in A’s case can go no further. One parent – mother or father – can prosecute maliciously (in tortious or criminal law terms) knowing at least that the family court will impede the parent who may have been maligned. As an alleged tax dodger you may or may not get away with it before the family court (an unsatisfactory state of affairs and of uncertainty, in itself); but if a parent may have been maliciously implicated to the police, the Family Court will not help.

How to manage A’s expectations? If the judge will not set out the procedural rules and case law he has cited my hands are tied in terms of my advice. Till the order is sealed – if it ever is – my advice remains: suitably redacted (to exclude the name of the child) release of the papers to the police or in any court proceedings should as a matter of balance between the mother’s Art 8 rights, and the father’s Art 6 and 10 rights, have fallen on the side of A. His application should have been granted. A human rights balance, in the family court’s semi-anarchic state, was not attempted by either judge in the two brief hearings before them. As a matter of law this should have been central to what both judges did.




Introduction to a blog


This is very long for a blog; but it seeks to show that changes may be blowing through the legal aid scheme, especially with the levels of exceptionality required of applicants under s LASPOA 2012 s 10. The s 10 criteria depend solely on human rights issues, not some separate exceptionality criterion. Rights must be balanced; and the right to a fair trial guaranteed by the Convention must be carefully weighed in any exceptionality balance. This is especially so where court processes from the unrepresented individual are complex or are  susceptible to challenge as ultra vires the primary statutory scheme (as with many family proceedings).


Exceptional case determination guidance


The Lord Chancellor has issued guidance to Legal Aid Agency decision-makers – The Lord Chancellor has issued guidance in relation to s 10: Lord Chancellor’s exceptional funding guidance (non-inquests)[1](undated) (‘the guidance’) – to assist them in determination of applications for ‘exceptional case’ funding under Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012) s 10; and a brace of cases – at least – has recently considered the meaning of exceptional case determinations. So how exceptional in this context is ‘exceptional’?


This article looks at the guidance under s 10 (which seems to have permitted only 8 grants of legal aid from a modest base of 111 family law applications in the first year of the 2013 scheme). Are practitioners permitting the EDC definition to be treated too restrictively (especially in family proceedings)? Is the guidance in law intra vires the Lord Chancellor and his Ministry of Justice draughtsman? That is to say, the politics of the Lord Chancellor and of his Government may reflect one version of s 10 (see the guidance); but is that truly a reflection of what Parliament intended or the European Convention 1950 requires?


‘Legal services’ under Legal Aid Sentencing and Punishment of Offenders Act 2012


An individual may obtain ‘civil legal service’ – referred to here as ‘legal aid’ – where they bring themselves within LASPOA 2012 s 9. This defines the availability of legal services generally as follows:


9 General cases

(1)Civil legal services are to be available to an individual under this Part if—

(a)they are civil legal services described in Part 1 of Schedule 1, and

(b)the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination).


The effect of s 9 is to narrow the availability of civil legal aid substantially from that which was available before the coming into operation of LASPOA 2012 on 1 April 2013. A form of safety net slightly to soften the harshness of the new scheme is provided by LASPOA 2012 s 10. This enables legal aid to be granted where LAA has made an ‘exceptional case determination’.


10 Exceptional cases

(1)Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) or (4) [applies only to inquests] is satisfied.

(2)This subsection is satisfied where the Director—

(a)has made an exceptional case determination in relation to the individual and the services, and

(b)has determined that the individual qualifies for the services in accordance with this Part,

(and has not withdrawn either determination).

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

(a)that it is necessary to make the 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.


Legal aid will be available (subject to means testing and the merit of the case: s 10(2)(b)) if the LAA makes an exceptional case determination. Such a determination is defined by s 10(3) in terms of a breach of an individual’s Convention rights or that there is a risk of a breach of such rights. This is the limit of the definition provided by s 10(3); and it is that definition with which this article is concerned. Much of what is considered here applies generally in civil proceedings the emphasis at times will be on family breakdown law.


Under the heading ‘What is an Exceptional Case?’ LASPOA 2012 s 10 was considered by Coulson J in M v Director of Legal Aid Casework & Ors [2014] EWHC 1354 (Admin):


[58] There was some debate before me as to what is meant by an “exceptional case” in Section 10 of LASPO. The defendant and the LC suggested that this meant not only a case that was outside Part 1 of Schedule 1 of LASPO, but also a case that was exceptional in its wider meaning, namely a case that was highly unusual or very much out of the ordinary. I do not accept that submission. It seems to me that, as a matter of statutory interpretation, Section 10 of LASPO is dealing with those cases which fall outside Part 1 of Schedule 1 of the Act. They are therefore exceptional, in that they are an exception to the general regime of the Act, which is that civil legal aid is only available for those cases falling within Part 1 of Schedule 1. In my view, there is no wider meaning (and certainly no magic) in the term “exceptional case”.


As the Court of Appeal confirms (below) ‘exceptional’ is applied to the fact that cases covered by s 10(3) come into the category there defined not because a case is ‘exceptional’ by any other criterion.


Lord Chancellor’s guidance


Para 5 of the guidance restates the terms of s 10(3)(a). The guidance goes on:


Section 10(3)(b)

6. Section 10(3)(b) does not provide a general power to fund cases that fall outside the scope of legal aid. It is to be used for rare cases and provides that an exceptional case determination may be made where the risk of the breach of the rights set out in section 10(3)(a) is such that it is appropriate to fund.

7. The purpose of section 10(3) of the Act is to enable compliance with ECHR and EU law obligations in the context of a civil legal aid scheme that has refocused limited resources on the highest priority cases. Caseworkers should approach section10(3)(b) with this firmly in mind. It would not therefore be appropriate to fund simply because a risk (however small) exists of a breach of the relevant rights. …


The emphasis above has been added. It will be the purpose of what follows to assess passages such as those in the light of the duties of decision-makers under a statutory scheme. It will be said here that it is the statute which defines the duties of the LAA decision-maker, not the guidance – especially if they are at variance; though this statement must be seen through the prism of such case law as there is to date.





Lawfulness of LAA decision-making


Where a decision-making body is statutorily entrusted with a discretion, as is the LAA decision-maker under s 10, it:


… must not disable itself from exercising its discretion in individual cases. It may not “fetter” its discretion. [If it does so] it may offend against either or both of two grounds of judicial review: the ground of legality or the ground of procedural propriety.[2]


The principle of not fettering discretion does not prevent the issue of guidelines to decision-makers; but these must comply with the scope of the powers conferred by statute. Guidance may not limit the scope of the discretion beyond that which is anticipated by the statute. Lord Browne-Wilkinson explained this in R v Secretary of State for Department for the Home Dept exp Venables [1998] AC 407, [1997] UKHL 25 at 496-7:


When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future…. By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise.


However the policy must not be such as to prevent the decision-maker from acting within the scope of the statutory powers, and by preventing his or her from taking into account factors which are relevant to the case in question. Lord Browne-Wilkinson went on:


… the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful: see generally de Smith, Woolf and Jowell: Judicial Review of Administrative Action, 5th ed. (1995), para. 11.004 et seq., pp. 506 et seq.


Any guidance which enables a decision-maker to depart from it only in circumstances that are extraordinary or rare may ‘fall foul of the no-fetter principle as amounting to a blanket policy’.[3] Guidance cannot be mandatory upon a decision-maker; though it must be an important factor in a decision-maker’s consideration of an application, as here under the statutory ECD scheme.


‘Rare’ cases: a fetter on discretion


The LAA guidance (at paras 6 and 7 above) seeks to narrow the scheme to being used ‘for rare cases’ (mentioned in both paras 6 and 7) and only for ‘the highest priority cases’. It introduces the limiting of grant of representation, so as to the refocus of the scheme on ‘limited resources’. This may be a fact in the political back-ground of the scheme; but it is not referred to as a criterion for grant in the Act. Is a decision-maker to be expected to make this direction part of his/her decision-making?


Each of the references in the guidance in paras 6 and 7 applies fetters to a decision-maker’s exercise of discretion as defined by s 10: there is no reference to these factors in s 10(2) and (3). Parliament does not seem to have contemplated – either in guidance or delegated legislation under the new scheme – that the Lord Chancellor would be permitted to fetter discretion in the way paras 6 and 7 assert.[4]


Para 7 concludes:


… Rather, section 10(3)(b) should be used in those rare cases where it cannot be said with certainty whether the failure to fund would amount to a breach of the rights set out at section10(3)(a) but the risk of breach is so substantial that it is nevertheless appropriate to fund in all the circumstances of the case. This may be so, for example, where the case law is uncertain (owing, for example, to conflicting judgments).


Paragraph 10 of the guidance goes on to assert that a grant of legal aid to avoid a breach under European Convention 1950 Art 6(1) ‘is very high’. The extent to which these references – paras 7 and 10 – are within the limitation on their powers which the Act contemplated.


The ‘overarching question’


At para 18 the guidance states how it sees the ECD scheme’s ‘overarching consideration’ in terms subjective to the author of the guidance. The overarching consideration for a decision-maker to consider is said to be (all emphases are as in the text of the guidance) as follows:


The overarching question to consider is whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings. This is a very high threshold.


The guidance follows the ‘overarching question’ in para 18 with the factors which a decision-maker should take into account. The guidance makes it clear that none of these factors ‘is necessarily determinative’. Each application must be decided on its individual facts (para 19). Factors for consideration include:


  • The importance of the issues at stake (para 20)
  • The complexity of the procedures involved (21)
  • The complexity of the law or the evidence in question (21)
  • The ability of the applicant to present or defend their case effectively without a lawyer (22)
  • In the case of child applicants what role is being played by a litigation friend or CAFCSS (24)?
  • In cases where the applicant lacks capacity what is the extent of lack of capacity (Mental Capacity Act 2005 s 2(3)) and is the applicant a protected party in terms of Civil Procedure Rules 1998 (25)?


Para 23 asserts that case workers should bear the following in mind in relation to the generality of EDC applications. Thus, it is said:


  • there is no requirement to provide legal aid to ensure total equality of arms between an applicant and opponent, so long as each side is afforded a reasonable opportunity to present their case under conditions that don’t place them at a substantial disadvantage compared to the opponent;[5]
  • most courts and, in particular, tribunals are well used to assisting unrepresented parties in presenting or defending their cases against an opponent who has legal representation.


The propositions here advanced are controversial. It is unlikely that the author has spoken with judges or to lay justices (in the family court) who are confronted daily by litigants in person. What is said about tribunals (so far as it is relevant at all: legal aid is rarely available for tribunals) begs the whole question of all that s 10(3) is concerned with.





Grant of legal aid: a European Court of Human Rights perspective


In JG Black LJ cites Muscat v Malta (2012) Application no 24197/10 [2012] ECHR 1601 as modern authority for the proposition that there is no obligation under European Convention 1950 to make legal aid available for all civil disputes.


Paragraphs 45 and 46 of Muscat deserve consideration by anyone applying under s 10 on grounds that procedures are complex, or otherwise querying their ability to present a case:


[45] The institution of proceedings does not, in itself, satisfy all the requirements of Article 6 § 1. The Court recalls that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. The right of access to court includes not only the right to institute proceedings but also the right to obtain a “determination” of the dispute by a court. It would be illusory if a Contracting State’s domestic legal system allowed an individual to bring a civil action before a court without ensuring that the case was determined by a final decision in the judicial proceedings. It would be inconceivable for Article 6 § 1 to describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without guaranteeing the parties that their civil disputes will be finally determined (see Multiplex v. Croatia, no. 58112/00, § 45, 10 July 2003, and Kutić v. Croatia, no. 48778/99, § 25, ECHR 2002-II).


So says the court access to the court must include the ability to see the case through to a ‘determination’: rules of evidence, case management and other procedural issues will arise here. There is no obligation to provide legal aid: the Court distinguishes between rights under Art 6(3) (criminal proceedings) and 6(1).


Muscat then goes on to break down the applicant’s entitlement into three components:


(1)   That ‘assistance [is] indispensable to effective access to court’ due to the complexity of procedure or the facts or law related to the case:


[46]… However, despite the absence of a similar clause for civil litigation, Article 6 § 1 may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable to effective access to court, either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case (see Airey v. Ireland, 9 October 1979, § 26, Series A no. 32)….


(2)   Legal aid should be available – guaranteed – where litigants need it to secure access to the courts to ensure they can have effective enjoyment of rights guaranteed under Art 6(1):


… In discharging its obligation to provide parties to civil proceedings with legal aid, when it is provided by domestic law, the State must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Article 6 (see, inter aliaStaroszczyk v. Poland, no. 59519/00, § 129, 22 March 2007;Siałkowska v. Poland, no. 8932/05, § 106, 22 March 2007; and Bąkowska v. Poland, no. 33539/02, § 46, 12 January 2010). An adequate institutional framework should be in place so as to ensure effective legal representation for entitled persons and a sufficient level of protection of their interests (ibid, § 47)….


(3)   Active intervention to provide assistance when ‘problems of legal representation are brought to the attention of the competent authorities’: could this include third parties (grand-parents etc in care proceedings)?


… There may be occasions when the State should act and not remain passive when problems of legal representation are brought to the attention of the competent authorities. It will depend on the circumstances of the case whether the relevant authorities should take action and whether, taking the proceedings as a whole, the legal representation may be regarded as “practical and effective”. Assigning counsel to represent a party to the proceedings does not in itself ensure the effectiveness of the assistance (see, for example,Siałkowska, and Staroszczyk, both cited above, § 122 and § 100 respectively).





Procedure for family proceedings


Any applicant for ECD legal aid in family proceedings, in the context of exceptional cases and a fair trial, is entitled to draw to the attention of LAA to the fact that Family Procedure Rules Committee (FPRC) and those who administer the new family court scheme have made the procedure for family breakdown law appreciably more complex than it was pre-22 April 2014 (coming into operation of the family court). Litigants and prospective litigants are in an appreciably more difficult position than they were pre-April. Without legal representation they are by definition at a disadvantage which would have been appreciably less, earlier this year.


At each stage there is also the extent to which delegated and sub-delegated legislation is lawful, and – more troubling still – the need to ensure that judges know the new law. That subsidiary legislation is unlawful can be demonstrated from a number of sources; and that judges cannot keep up with the law – even with trained advocates in court with them – can be shown from a variety of case law. Anecdotal evidence is likely to illustrate these points more frequently; and depressingly so.


(1) Crime and Courts Act 2013 ss 75 and 76


Crime and Courts Act 2013 ss 75 and 76 delegate the making of Family Procedure Rules 2010 to FPRC. In particular Crime and Courts Act 2013 s 75(5) provides as follows:


(5)Any power to make Family Procedure Rules is to be exercised with a view to securing that—

(a) the family justice system is accessible, fair and efficient, and

(b) the rules are both simple and simply expressed.


Words like ‘accessible’ and ‘simply expressed’ are subjective. To Sir James Munby P who has signed off a bewildering variety of practice directions in the few days before 22 April 2014 and the introduction of his ‘cusp of history’ family court, these emissions will be relatively ‘simply expressed’. Had he paused to think that the majority of less well-off litigants will not be represented (subject to availability of EDC) – and if they are represented, it is not by someone of his sophistication – he might have realised that for most members of the public and for many lawyers the new schemes are by no means ‘simple’. For example, for application for a Children Act 1989 s 8 order (ie a ‘child arrangements’ better known to most people as custody or access), the accessibility to the courts are by no means simple. The litigant must have a reasonable knowledge of:


  • Children Act 1989 Parts 1 and 2
  • Children and Families Act 2014 ss 10, 13 and ##
  • FPR 2010 Part 12 (most) and the majority of some ten practice directions
  • FPR 2010 Parts 1, 3, 4, 5, 6, 20, 21, 23, 24, 25, 28, 33 (with appropriate practice directions)
  • Parts of CPR 1998 (eg Part 44)
  • Various case law


It is unlikely that generalist district judges and circuit judges, and lay justices and their legal advisers, will know the detail of most of the above: indeed it is clear from case reports that the more senior judiciary do not.


If the scheme is as complex – in real terms – as suggested above then there is a real question of the vires of what is being done (or not done, in many instances: disclosure is left in family proceedings entirely to the common law; in theory Civil Procedure Rules 1998 cannot apply, etc) as a whole. Certainly, vires apart, it may be thought that many cases by definition leave the system too complex for many family litigants (see guidance para 21: and references to ‘procedural’ complexity).


(2) The new family court: dubious vires


The new family court has produced a variety of new delegated and sub-delegated legislation, and local practice directions further to complicate matters. From an objective stand-point it is hard to guarantee a fair trial to any party to family proceedings where so many of the rules are of dubious vires.


For example Children and Families Act 2014 s 10 provides for family mediation information and assessment meeting (MIAMs). FPR 2010 Part 3 and an accompanying practice direction deal with MIAMs in terms, some of which are plainly ultra vires what is permitted in the statute. Many of the procedural provisions for all children proceedings are not in properly framed rules but in arbitrarily produced practice directions. As a matter of law practice directions should only guide procedure: see eg Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171.


Every litigant in family proceedings, were the Ministry of Justice to wish to ensure fairness, should guarantee anyone who wanted it, a lawyer who would check the vires of any provisions to which their application is subject.


(3) Alsatianisation of Family Procedure Rules 2010


It might be thought that – as was the case till March 2011 – all family proceedings, as civil proceedings, would be subject to the same procedural rules, as they are (mostly) to the same rules of evidence. But no. The present family proceedings administration insist that family proceedings should have increasingly separate procedural rules – even some rules of evidence are to diverge (see eg Children and Families Act 2014 s 13).


Thus though, as Munby LJ reminded us all,[6] the common law applies equally to family as to other proceedings – family cases do not proceed in some legal ‘Alsatia’, he told us – in procedural terms the administrators of family justice (pre-eminent amongst them, the same Munby, now Sir James Munby P) are intent up Alsatianising family court procedures. Of itself this creates an unnecessary complexity for family breakdown litigants


Family law: ‘specific cases’


Of family proceedings specifically the guidance says, at para 43:


Where a case involves the determination of civil rights and obligations, caseworkers should consider whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings, having regard to the general factors described above.


It then goes on to point out matters of particular relevance:


  • Are proceedings likely to be particularly emotive? But so are most family proceedings. This alone is unlikely to engage Art 6(1).
  • Complexity is geared to Airey v Ireland (1979) 2 EHRR 305. As mentioned above an increasing spectrum of family cases involves real complexity thanks to the cross-currents of law, common law, delegated and sub-delegated legislation – and that some of the later is of increasingly dubious vires
  • Legal and factual complexity


That family law by definition can be complex can be illustrated from the case of JG. With three silks, two barrister, five or six solicitors and three lady/lords justices in the case no-one noticed that the order made by the district judge which was the subject of the proceedings could not be made:


(1)   Thanks to the fact that at the time (April 2008) CPR 1998 could not apply to family proceedings (CPR 1998 r 2.1(2)), then opinion (expert) evidence in family proceedings was governed by Rules of the Supreme Court 1965 Order 38. Under Order 38 there was no power in the court to make a joint instruction order; so the district judge could only have made the order the child sought. The Legal Services Commission refusal was based on an illegal order. (It can be seen that Black LJ is a little vague as to the pre-2011 power to make expert evidence directions (para [59]: ‘nothing turns’ on the difference between old rules and new: no-one seems to have referred her to Order 38).


(2)   There is no clear power in the court to order a party to pay funding expenses before a time when the court can make a costs order (Senior Courts Act 1981 s 51). If (1) above is correct the principles in FPR 2010 r 25.8(##) did not apply anyway; but if they did, they were probably ultra vires the rule-makers.


If the array of lawyers involved in JG can get it wrong – as they appear to have done – it it not likely that by definition a family proceedings case is likely to involve questions in every case about


  • The vires of the rule in question in the proceedings
  • The practice to be followed once the correct rule has been identified and that it is lawful has been established



(5)        MERIT OF GRANT


Merit in family proceedings


It would be naïve indeed to imagine that in family cases the complexity of the new scheme, by definition, would bring a case within the terms of s 10(3)(b); but what this analysis may point up is that the increasing complexity of the new family court scheme will make things more difficult for litigants; and the vires of many of the provisions will not be tested, without expert legal advice. If their case has merit, and their means permit it, practitioners should bear in mind that complexity of process alone (see Muscat above) can justify legal aid.


Merit in proceedings which involve children


The JG case involved a child, and saw the Court of Appeal consider issues in terms of European Convention 1950; but there was no necessity in that context fully to define and sequence children’s rights. This will be needed in a genuine human rights case where the rights of children are engaged, whether it be in immigration ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4), housing or family proceedings.


The decision-maker must take full account of the proportionality balance and sequencing tests which a judge must undertake. These are not touched upon in the guidance. They are central to any human rights assessment where children’s rights are involved. Briefly the court will be required – and the decision-maker must therefore contemplate and give reasons in his/her decision for – to consider the interplay of any rights involved and of their comparative importance. In Re S (Identification: Restrictions on Publication) [2004] UKHL 47 Lord Steyn spoke of the position where the values under the two articles are in conflict. Then, he said – and this has become the classic formulation of balancing test for competing rights – there must be an ‘intense focus on the comparative importance of the specific rights… in the individual case…’. The justification for interference, or the restriction of any right, ‘must be taken into account’ says Lord Steyn.


If it is in contemplation that a child’s rights will in fact be interfered with, those rights must be ‘sequenced’. To justify interference, says Lord Kerr says in two deportation/immigration cases (ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25). These principles apply for child rights cases generally said the Supreme Court. Lord Kerr explained his ‘sequencing’ of decision-making as follows:


(1)   First, the court must ask the question: has there been (or is there proposed to be) any interference with the Art 8 rights of the child?

(2)   If so, what is the nature of the child’s rights engaged?

(3)   What is the importance of those rights, relative to other rights engaged by the particular proceedings?

(4)   What is the degree of interference with the child’s Art 8 rights (and see per Lord Steyn: in Re S, para [25], it is ‘necessary to measure the nature of the impact … on the child’ of what is in prospect’)?

(5)   Whether the action proposed justifies interference with the rights engaged? In H(H) the proposal was that a parent should be extradited, and the court must consider in relation to a child, whether and to what extent the right to family life of the child was justifiably interfered with.


Each case is fact specific. Who are the children; who are the other parties; and what factors in the case justify any particular interference? Finally the court must assess the proportionality of interference once the rights have been defined. Proportionality in Convention jurisprudence is the counter-balance or check to what the court considers Convention rights require of it. It requires any public authority to justify the interference with a Convention right. The judge must show that the interference is proportionate to the aims which the judge in that case says that the interference is sought to achieve.



(6)        CONCLUSION


Procedural complexity is ‘exceptional’


Coulson J and Black LJ, both obiter, may be said to take a slightly different view of s 10; but both agree that it is a label to define the categories of representation referred to in s 10(3), not a term to define, for example, the narrowness of the scheme. Thus Black LJ in JG:


[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.


Of itself procedural complexity is ‘exceptional’ because it threatens anyone but the most competent lawyer with the possibility of a trial which is not fair; and that engages Art 6(1); and that engages – as night follows day – Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10(3)(b).


The rate of grant and only 111 applications suggests that practitioners are permitting the EDC definition to be treated too restrictively (especially in family proceedings). Theya re perhaps taking the Lord Chancellor’s guidance at face value without reflecting upon its vires and what it means in the context of what s 10(3) actually says.


So to return to the questions posed at the beginning: this article says that, yes, certain of the guidance – especially when seen in the context of Muscat – is unlawful to the extent that it fetters the discretion of LAA decision-makers. In many instances, especially where it is not within the terms of s 10, it does create fetters. In terms of merit: applicants are entitled to point to the complexity of the law, and especially the increasingly complicated procedures of family proceedings, to say that in increasing numbers of cases the law is too complex for parties – and for some judges – to be sure that an individual will have a fair trial without access to an experienced lawyer and advocate.



[2] De Smith’s Judicial Review 7th ed (2013) at 513

[3] De Smith at 522

[4] In M v Director of Legal Aid Casework & Ors [2014] EWHC 1354 (Admin) Coulson J commented obiter on the ‘rare’ basis for assessment: [75] The other criticism is, of course, the LC’s reference to the risk of breach being “so substantial” that it is appropriate to provide civil legal aid. Mr Bowen QC’s criticism of that was that it set the bar too high. But that was based on his test of a “real risk” or a “real possibility”. For the reasons set out above, I have rejected that formulation and consider that, in the context of the LASPO regime, the test must be higher than that: something like “a significant risk” or “a very high risk” of breach. Therefore, I am wholly unable to say that the reference to “so substantial” is wrong or unlawful: on the contrary, it broadly chimes with my interpretation of Section 10(3)(b).

[5] The nn for this is given only as ‘De Haes and Gijsels v Belgium (1998) 25 EHRR 1’. This case (also De Haes and Gijsels v Belgium – 19983/92 [1997] ECHR 7) is difficult to see as authority for the proposition advanced for it by the LAA in the guidance: the case related to damages for defamation and the rights of the press. A more recent assessment of the current law in Muscat v Malta (2012) Application no 24197/10 (considered in JG at [97]).

[6] Richardson v Richardson [2011] EWCA Civ 79