POSSIBILITIES FOR STATE FUNDING FAMILY CASES AFTER Q v Q (No 2)

Funding family proceedings

In Q v Q (No 2) [2014] EWFC 31 (06 August 2014), Sir James Munby P considered, amongst other things, the extent to which certain family litigation seemed to him to demand that particular litigation expenses be paid for by state funding (and see http://wp.me/4jaDx ). An earlier hearing in Q is reported as Q v Q [2014] EWFC 7 (and see http://wp.me/p4jaDx-5J for comment on complexity of family proceedings, legal aid and the earlier Q v Q). This raises questions as to whether the court has power to order funding from another public body (eg Ministry of Justice which is responsible for HM Courts and Tribunal Service (HMCTS) and Legal Aid Agency (‘LAA’)): and if so how individuals might be entitled to such funding apply for it.

If the court or any other agency has no power to arrange funding, are any indirect powers available to the court to enable a case to be funded? For example, in a case considered by Sir James (H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162) the judge, Roderic Wood J, was able to ask the Attorney-General to instruct an advocate to cross-examine (in place of an alleged sex offender) the young woman witness who accused him of abuse.

Funding or costs; and of what

In any consideration of legal aid and costs the following need to be distinguished:

(1) Funding and costs (and see http://wp.me/4jaDx ) – Funding is what must be found to pay for a case (often in advance). Costs is what a party may be ordered to pay to another party at the end of the case (governed by Senior Courts Act 1981 s 51).

(2) Expenses and lawyers remuneration – The funding aspects of the cost of a case contains two components: (a) payment for legal representation (income for lawyers, also called ‘remuneration’: eg Civil Legal Aid (Remunerations) Regulations 2013) and (b) payment of the expenses in the case (eg court fees, witness expenses, expert’s fees, assessment of parents etc).

Legal aid concerns the funding of proceedings; and mostly (when granted) covers both expenses and remuneration for lawyers.

Recent case law

Recent Court of Appeal and High Court judge judgements resolve themselves into two main categories:

(1) Those where the issue before the court on judicial review was the lawfulness of a LAA decision, or failure to decide:
• R (on the application of T) v Legal Aid Agency & ors [2013] EWHC 960 (Admin), Collins J (26 April 2013) – LAA decision to limit expenditure on assessment quashed
• M v Director of Legal Aid Casework & Ors [2014] EWHC 1354 (Admin), Coulson J (2 May 2014) – LAA decision on merits criteria unlawfully applied (case of information disclosure to CPS) remitted for reconsideration
• JG v Lord Chancellor and ors [2014] EWCA Civ 656 (21 May 2014) – LAA decision not to fund expert’s fee declared unlawful
• Gudanaviciene v Director of Legal Aid Casework and the Lord Chancellor [2014] EWHC 1840 (Admin) (13 June 2014), Collins J (decisions to refuse (in immigration cases) quashed
• R (ota The Public Law Project) v The Secretary of State for Justice, the Office of the Children’s Commissioner (intervener) [2014] EWHC 2365 (Admin) (15 July 2014), Divisional Court consisting of Moses LJ, Collins, Jay JJ) – residence test in 2014 amendment Order illegal

(2) Those where judges have made comment on the non-availability of legal aid funding, but where their comments are obiter and not decisive of any issue before the court:

• Re Jones (Alleged Contempt of Court) [2013] EWHC 2579 (Fam), Sir James Munby P
• Kinderis v Kineriene [2013] EWHC 4139 (Fam), Holman J
• Q v Q [2014] EWFC 7, Sir James Munby P
• Re AB (A Child: Temporary Leave To Remove From Jurisdiction: Expert Evidence) [2014] EWHC 2758 (Fam), HHJ Bellamy sitting as a High Court Judge
• Q v Q (No 2) [2014] EWFC 31 (06 August 2014), Sir James Munby P

If the above are representative of the present position of the case law in relation to legal aid then the decisions made by the courts relate only (and this is probably all that they can do) to reversing LAA decisions, or otherwise sending back LAA decision-maker’s decisions to them for reconsideration. The exception to this is ota PLP, which is known to be under appeal.

By contrast the decisions under (2) above (and a lot of the comment in the cases in (1)) represent the views of judges (mostly supportive of a legal aid scheme); but it does not change the underlying statute law.

Funding of the cases in Q v Q (No 2)

Q v Q (No 2) is in the second group of cases. The matter which was of concern to the President was whether justice could be done in any of three cases if certain legal expenses and remuneration for one or more of three fathers (‘F’) was not covered by legal aid. In Q v Q the father is a convicted rapist and speaks no English; F in Re B is alleged by the mother to have been raped by him, which he denies; and F in Re C awaits trial (as at 6 August 2014) on charges – denied by him – of rape of the mother. Sir James was asked to make case management decisions on the case (the issue before the court); and in the course of so doing, he made a variety of comments on funding positions of the respective fathers. These included that the state should (could?) be required to fund aspects of the case. The purpose of this article is to seek to identify to what extent and how this can be done. In various ways legal aid had been limited or denied; but the issue of any LAA decisions was not before Sir James on the day of the case management hearing.

Public funding outside the legal aid scheme

The grant of funding by the tax-payer, in general terms and subject to points considered below, is a matter for statute law alone, starting from Legal Aid Act 1949. It is not open to the common law to make provision in advance for funding of litigation (save in the case of costs allowances in certain family proceedings). There is very little scope, in any event, for funding of private cases by another party to proceedings. Indeed one of the few statutory provisions for other party funding is provided for in LASPOA 2012 ss 49-51 (by amendment to Matrimonial Causes Act 1973). These provisions are part of LASPOA 2012 Part 2, which do make certain provision for private funding of cases (eg success fees and damages based agreements for costs); but there is no statutory provision for private or public funding by courts (beyond Matrimonial Causes Act 1973 s 22ZA (legal services orders)) in Part 2.

Sir James’s discussion (starting at para 46 in Q v Q (No 2)) for court awarded public funding from HMCTS starts from the premise that the court is a public authority (Human Rights Act 1998 s 6(3)(a)). It is prevented from acting in a way incompatible with European Convention 1950 (HRA s 6(1)). European Convention 1950 Art 6 guarantees the right of practical and effective access to the court; and in the case of a litigants in person whether this is achievable without legal assistance (Airey v Ireland (1979) 2 EHHR 533) (para 48). It is the court which decides whether appointment of an expert is necessary (CFA 2014 s 13(6)); and if their attendance at court is required then it may be for the court to bear the cost (paras 56 and 57). Similarly, if legal representation is needed for the court to discharge its duty under MFPA s 31G(6), then appropriate representation must be provided at the expense of HMCTS (paras 69, 79).

If this is to done then tax-payer’s money must be found. Judges have no budget of their own. And there is a mass of statutory material (LASPOA 2012, delegated legislation and ministerial guidance) providing for such public funding as the present Government are prepared to allow. (Such legal aid as there is and the extent to which LASPOA 2012 s 10 (exceptional case determinations) applies is for separate consideration.) Against this back-ground it is not obvious how, in the absence of enforceable common law provision, funding by HMCTS is to be achieved.

Three indirect possibilities suggest themselves and, subject to the need for much more research, are put forward here:

(1) Application direct to HMCTs for funding

The logic of Sir James’s judgement is that if certain conditions as to means, merit and lack of alternative funding (private or legal aid) are met, then application can be made direct to HMCTS, perhaps by reference to the family court office in which the case is proceeding.

On Sir James’s suggested approach, merit would probably be dictated by the terms of case management directions. With those directions the applicant would then have to show (a) that s/he had no source of private funding; (b) that legal aid was not available; (c) that the judge had directed assistance and (d) that his/her means – perhaps by reference to a legal aid means determination (Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013) – justified assistance.

It would be for HMCTS to identify a fund from which payment could be made; and if they refused judicial review of their decision would lie (as against LAA but with no statutory back-bone for the applicant) to the Administrative Court.

An inevitable question which then arises is: does Q v Q (No 2) and Sir James’s obiter comments, alongside the existing scheme – however that scheme may be perceived by judges – create any form of legitimate expectation that funding will be provided by HMCTS? This area requires much further research. The President of the Family Division has an administrative function; but in that function does not lie the spending of taxpayer’s money. It is unlikely that, constitutionally, he can be said to be in a position legitimately to raise an actionable expectation. In general (see eg de Smith’s Judicial Review (7th Ed) Woolf et al Chapter 12) a legitimate expectation requires a decision-maker to have given the applicant a clear expectation that s/he will receive a benefit from a scheme or decision. A hope is not enough. This seems unlikely to be a fertile area for consideration, but it must be born in mind.

Assessors

SCA 1981 s 70 (and an equivalent provision for county courts in in County Courts Act 1984 s 63) enables the court to appoint assessors:

70 Assessors and scientific advisers.
(1)In any cause or matter before the High Court the court may, if it thinks it expedient to do so, call in the aid of one or more assessors specially qualified, and hear and dispose of the cause or matter wholly or partially with their assistance.
(2)The remuneration, if any, to be paid to an assessor for his services under subsection (1) in connection with any proceedings shall be determined by the court, and shall form part of the costs of the proceedings.

FPR 2010 r 25.20 (tacked on at the end of the rules on expert evidence) explains how this is done; though application of ss 70 or 63 in the family court is not as clear as it might be. The assessor could be a person whose opinion – including decision-making – might assist the court. Their role in many ways would not be dissimilar to that of a jointly funded expert. The issue of costs remains (s 70(2)) above; but so far as the court has power to award costs against a third party (SCA 1981 s 51(3)), perhaps it could order assessor’s costs from public funds.

So far as I know this has not been done in family proceedings. If a way of funding the assessor direct from HMCTS can be found there is no reason why it should not be attempted.

Attorney General

In H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 Roderic Wood J and the Attorney General arranged for an advocate to the court to be appointed for the father limited to cross-examine a vulnerable witness for the mother. That was dealt with under the Attorney General’s Memorandum of 19 December 2001 [2002] Fam Law 229 (see eg Family Court Practice 2014 at 2869). This remains basis on which the Attorney General becomes involved in appointment of an advocate to the court.

The memo deals with appointment at paras 3-8, and in particular it stresses that and advocate to the court ‘represents no one’ (para 4); so that his/her role is limited to that professionally adopt by him/her not on instructions from any party. Request is made by the court to the Attorney General (para 9) or to the Official Solicitor to appoint an advocate (para 11-12). It is for the Attorney General to decide whether assistance will be provided and on what terms (para 10).

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