Buttressing the right to a fair trial
Equality of arms is intended to be a buttress of the right to a fair trial (European Convention 1950 Art 6). In JG v Lord Chancellor and ors  EWCA Civ 656 http://www.bailii.org/ew/cases/EWCA/Civ/2014/656.html Black LJ commented on the point by reference to Muscat v Malta (2012) Application no 24197/10  ECHR 1601. There may be no obligation under European Convention 1950 to make legal aid available for all civil disputes, but (had said the European Court):
 … [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.
Access to the court must include the ability to see the case through to a ‘determination’. Muscat (at para 46) breaks down the applicant’s entitlement to legal aid; but unless you are up there in the sights of a Muscat type case as a litigant – ie that you need legal aid to secure effective access to the court – you won’t have equality unless you can pay for the case yourself, or you have legal aid. The past six months has tested such inequality in family litigation, in cases where legal aid would have been available (subject to the individual’s means) pre-2013; but where legal aid is now denied because of changes which are working their way through since introduction of Legal Aid Sentencing and Punishment of Offenders Act 2012 (‘LASPOA’) in April 2013.
Judges: attempts to blow the Lord Chancellor’s legal aid house down
Judges can huff and they can puff; but their job is to judge, not to play legal aid politics. And, it seems, there is little they can do to blow the Lord Chancellor’s LASPOA house down (save where application is made successfully for judicial review: that has been happening incrementally; it is a subject for another day; and, for now, it is fair to observe that family lawyers are remarkably complicit with the Legal Aid Agency (LAA) in permitting its harsh regime to consume their client’s cases).
Sir James Munby P notably has huffed; and he has threatened to make the Ministry of Justice pay by a door other than legal aid. But, being a politician the Lord Chancellor craves attention. The more the judges huff and puff, yet can do nothing, the more – I suspect – he enjoys it. He knew what he was doing when he strangled the private law family proceedings legal aid budget. If the effects are working, then all the more political credit to him. Sir James’s harrumphing has the opposite effect.
Court inroads, and court harrumphing
There have been a series of inroads on the scheme in the Administrative Court in judicial review. That works for the particular case – unless the LAA go off and re-make a decision with the original outcome, but made correctly the second time. However, unless a general principle is involved the benefit is narrow and short-lived (Black LJ’s ratio for her decision in JG – as she herself accepted – was three lines in a 132 paragraph judgment). Most are but a tiny skirmish on the wide front of the battle against the Lord Chancellor.
That said, these cases are not what this note is about. It concerns the recent harrumphs of Family Division judges. Have they helped parties to find another way to funded legal representation? (One thing that can be fairly certain is the inefficacy of the lawyer’s representative bodies: what are Law Society Family Law Committee, FLBA and Resolution doing – I genuinely would like to know, but my impression is: very little).
Three recent cases have highlighted the problem; and – thus far at least – have also highlighted the powerlessness of judges. Perhaps this is right: judges judge. Others (perhaps including judges, but in another capacity) join in the trench warfare in which radical lawyers are involved, on behalf of their clients, with the Ministry of Justice. These cases include:
• Q v Q (No 2)  EWFC 31, Sir James Munby P http://www.bailii.org/ew/cases/EWFC/HCJ/2014/31.html
• Re D (A Child)  EWFC 39 (31 October 2014), Sir James Munby P http://www.bailii.org/ew/cases/EWFC/HCJ/2014/39.html ; preceded by A Father v SBC and ors  EWFC 6 (23 May 2014) Baker J and Re D (A Child)  EWFC B77 (9 June 2014) HHJ Marshall.
• R v R (Family Court: Procedural Fairness)  EWFC 48 (11 December 2014), Peter Jackson J http://www.bailii.org/ew/cases/EWFC/HCJ/2014/48.html .
I have considered some of these cases more fully elsewhere (‘State funding for family proceedings after Q v Q (Private law: public funding): Part 1’ Family Law  October http://onlineservices.jordanpublishing.co.uk/web/pub.xql?c=t&action=home&pub; ‘State funding for family proceedings: Part 2: exceptional case determination’ Family Law  November http://onlineservices.jordanpublishing.co.uk/web/pub.xql?c=t&action=home&pub; and ‘State funding for family proceedings: part 3: sources of family proceedings funding’ Family Law  December http://onlineservices.jordanpublishing.co.uk/web/pub.xql?c=t&action=home&pub ).
This note looks at possible options there may be for parties to be funded (save from their own resources) outside the legal aid scheme. To what extent can family lawyers press for this and for other possible forms of public funding for their clients?
State funding after Q v Q (August 2014)
In early August 2014 Sir James Munby P considered the extent to which children proceedings demanded that particular litigation funding and other expenses might be paid for by the state. Without deciding anything, nor with any other than scant recitation of authority, Sir James raised questions as to the extent to which the court has power to order funding from a public body other than Legal Aid Agency. For the individuals concerned, and for their advisers, how to apply for such funding remains a largely unresolved question; even if, since August 2014, Sir James has found out how such funding might be available.
Sir James’s discussion (-, - and - in Q v Q (No 2)) for funding from HM Courts and Tribunal Service (in essence the same budget from which legal aid is drawn: ie Ministry of Justice) 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 (Airey v Ireland (1979) 2 EHHR 533) (para ; Muscat v Malta (2012) Application no 24197/10  ECHR 1601; JG v Lord Chancellor and ors (above)).
It is the court which decides whether appointment of an expert is necessary (Children and Families Act 2014 s 13(6)); and if so maybe it is for the court to bear the cost (paras  and ). Similarly, if legal representation is needed for the court to discharge its duty under Matrimonial and Family Proceedings Act 1984 s 31G(6), then appropriate representation must – perhaps – be provided at the expense of HMCTS (paras , ). Three possibilities arise from Sir James’s comments:
(1) Direct application for HMCTs funding
Sir James’s comments suggest that – subject to means and merit – then application should be made direct to HMCTS (would the office of the family court where the case is proceedings be able to help with an apt address?). The following pre-conditions to grant suggest themselves:
(1) Merit would probably be dictated by the terms of case management directions; and with such direction an applicant would then have to show
(2) The applicant has no alternative source of private funding;
(3) That legal aid was not available under the LASPOA 2012 scheme; and
(4) That the applicant’s means – perhaps by reference to the Ministry of Justice approved court fees remission scheme (Family Proceedings Fees Order 2008 (as extensively amended) Schedule 2) – 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 – in principle, at least – lie to the Administrative Court. And do Sir James’s obiter comments, alongside the existing legal aid scheme create any form of legitimate expectation amongst potential applicant that funding will be provided by HMCTS? 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; and it must be open to doubt that Sir James is in such a position. Developments from Sir James’s comments are awaited.
The role of assessors in family proceedings is relatively overlooked by court (save in the costs jurisdiction). Senior Courts Act 1981 s 70 (applicable in county courts per County Courts Act 1984 s 63 and in the family court: see MFPA 1984 s 31E) 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 explains how this can be done. The assessor could be a person whose opinion – including taking part in decision-making – might assist the court. Their role in many ways would be similar 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 (ie HMCTS). HHJ Marshall left the parties following her rambling attempt at Re D (as it seems to me) crying out for appointment of an independent social work assessor (see para -); but many children lawyers might regard that a little radical.
(3) Attorney General
In H v L and R  EWHC 3099 (Fam)  2 FLR 162, at the request of Roderic Wood J the Attorney-General (‘A-G’) arranged for an advocate to the court (‘AtoC’) to be appointed to deal with a father’s cross-examination of a mother abused by him. The role of the AtoC was limited to cross-examination of a vulnerable witness (the mother); but not as representative of the father. The assistance was for the court alone. The instruction of the AtoC, by the A-G, was dealt with under the Attorney-General’s Memorandum of 19 December 2001  Fam Law 229 (see eg Family Court Practice 2014 at 2869: this memo remains basis on which the A-G deals with requests for appointment of an advocate to the court).
The Memorandum reveals that a request comes to the A-G from the court. The appointment is a matter for the A-G (paras 3-8). The Memorandum stresses that an advocate to the court ‘represents no one’ (para 4): his/her role is limited to that professionally adopted by him/her (ie not eg on instructions from any party). Request is made by the court to the A-G (para 9). It is for the Attorney General to decide whether assistance will be provided and on what terms (para 10).
In Q v Q (No 2) Sir James considered how this assistance to the court would be capable of assisting the court (judge or magistrates) where MFPA 1984 s 31G(6) applies. This provision is as follows:
(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.
To what extent will courts be able to invite the A-G to instruct an advocate, where a witness needs protection from cross-examination by an abuser (alleged or otherwise). The court can then, through the AtoC, ‘cause to be put’ questions to the abused person? It must be hoped that this is a question high on the agenda of the Vulnerable Witnesses Working Group.
In Re Ramet (application for the committal to prison)  EWHC 56 (Fam) Sir James Munby P said of legal aid for committal applications:
 I turn to legal aid, public funding. In Re Jennifer Marie Jones  EWHC 2579 (Fam), para 43, I referred to what, as I was told, seemed to be the limited availability of public funding in contempt cases. Whatever the limitations of civil funding, public funding in contempt cases is available under the criminal scheme. The key provision is regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013, SI 2013/9, which says:
“The following proceedings are criminal proceedings for the purposes of section 14(h) of the [Legal Aid, Sentencing and Punishment of Offenders Act 2012] (criminal proceedings) –…
(v) any other proceedings that involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention on Human Rights.”
The effect of the decision of the Court of Appeal in Hammerton v Hammerton  EWCA Civ 248,  2 FLR 1133, is that this covers all proceedings for contempt of court, whether criminal or civil in nature and whether arising in the context of criminal, civil or family proceedings.
 Because this is criminal public funding, it can be ordered by the court. So, in the present case I made an order on 28 November 2013 granting Mr Ramet legal aid for solicitor and junior counsel. A detailed analysis of the scheme can be found in the judgment of Blake J in King’s Lynn and West Norfolk Council v Bunning (Legal Aid Agency interested party)  EWHC 3390 (QB).
Committal applications in European Convention 1950 jurisprudence are in effect criminal proceedings was explained by the Court of Appeal in Mubarak v Mubarak  1 FLR 698 (and see there references to Engel and Others v The Netherlands (No 1) (1979) 1 EHRR 647, at 677 paras 80 and 81). Application for funding is to the court by the individual whose committal is sought. Whether this is to be on the day or by separate FPR 2010 Part 18 or Part 19 application remains to be clarified by Family Procedure Rules Committee.
Lessons from administrative law proceedings
(1) Protected costs orders
The Administrative Court has developed a jurisdiction which protects an applicant for judicial review from an adverse costs order if their case is in the public interest and the applicant expects no personal gain (R (Corner House Research) v Secretary of State for Trade & Industry  EWCA Civ 192,  1 WLR 2600). In the unlikely event that a parent is threatened with a costs application in children proceedings, and where such proceedings are for the benefit of a child – says the parent – then a form of protective costs order (on Corner House principles) in children proceedings is not inconceivable. Indeed such an order was touched upon by Sir James in Re D.
(2) Unfunded parties to care proceedings
In care proceedings, grand-parents, or other family carers, share thin gruel when it comes to funding of legal representation; though the court and local authority may need to rely on such family members to care for the child concerned, perhaps long-term. As was explained in Re T (Costs; Care Proceedings; Serious Allegations Not Proved)  UKSC 36  1 FLR 133, there is no guarantee that they can expect funding for representation from a local authority, even where they are caring for a child and where their means takes them outside legal aid.
And yet, can they claim any ‘legitimate’ expectation to expect any such funding? Almost certainly not; but the question bears asking. The subject is derived almost entirely from administrative law (see eg references to de Smith above; and Judicial Review Proceedings: a practitioner’s guide Jonathan Manning, Legal Action Group (2013) at 6.266 etseq).
Clarity in law: a conclusion
Lord Bingham’s first principle of the Rule of Law (2006 David Williams lecture: http://www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php) is as follows:
First, the law must be accessible and so far as possible intelligible, clear and predictable. This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will), and the answer when given should be sufficiently clear that a course of action can be based on it.
Making family law clear and, as far as possible, ‘intelligible’ to the averagely intelligent layman – who will not ‘usually’ have legal advice, as Lord Bingham expected – is the first challenge for reformers if funding is to remain as piece-meal as outlined in this series. And doing that critically – is this law clear to the averagely intelligent layman? – must be a part of the landscape the lawyer tries to discern through his or her Muscat v Malta spectacles.
Those spectacles are the key to LASPOA s 10 funding which so many family lawyers have so far flunked (see ‘State funding for family proceedings: Part 2: exceptional case determination’ Family Law  November http://onlineservices.jordanpublishing.co.uk/web/pub.xql?c=t&action=home&pub).