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)  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)  UKHL 10,  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)  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  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  EWFC 7 found Sir James Munby P sitting in the family court and has attracted press attention, including from the Guardian. 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  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:
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  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:
 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 http://wp.me/p4jaDx-5y). 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.