#LEGAL AID: COMMITTAL PROCEEDINGS IN THE FAMILY COURTS

The two cases considered here say as much about the obscurity – even the injustice of that obscurity – of legal aid provision, as they do about grant of legal aid for committal applications in civil (including family) proceedings. Different applications must be made according to what civil court you are in (High Court and Court of Appeal on the one hand, or County Court or Family Court on the other). And to make the whole thing more obscure still application is based on criminal legal aid principles and regulations.

In family proceedings in the Family Court and for civil proceedings in the County Court the court itself has no power to grant legal aid for committal proceedings for disobedience of a court order. By contrast the High Court (including the Family Division) and the Court of Appeal has such power. The legal aid provisions which give rise to this confused state of affairs was considered fully by McCombe LJ in Brown v London Borough of Haringey [2015] EWCA Civ 483 (especially at [26] to [36] – http://www.bailii.org/ew/cases/EWCA/Civ/2015/483.html ). I am afraid that if application is to be made, and if it is necessary to refer a Legal Aid Agency (‘LAA’) decision-maker to law, there will be no substitute for referring in full to those paras [26] to [36], so I will not burden this note by quoting them.

Committal proceedings in the civil and family jurisdictions are treated as criminal proceedings (Benham v United Kingdom [1996] 22 EHRR 293 at 324; Hammerton v Hammerton [2007] EWCA Civ 248 at [9]; King’s Lynn and West Norfolk Council v Bunning [2013] EWHC 3390 (QB) at [16]. European Convention 1950 Art 6(3)(c) guarantees entitlement to legal aid where an individual is charged with a criminal offence and the interests of justice require. Application may have to be a firm with a criminal contract (this is not entirely clear from the reports); and must be on criminal legal aid forms (suitably amended, if need be).

In the County Court and Family Court application is to the Director of Case Work at the Legal Aid Agency (‘LAA’) (Brown v London Borough of Haringey [2015] EWCA Civ 483 at [35]), not – as in the case of the High Court and Court of Appeal – to the court itself.

King’s Lynn v Bunning (alleged contempt of a possession order) was proceedings in the High Court and Blake J was able, after consideration of the relevant ‘obscure’ legal aid provisions, to find that he could make an order of grant of legal aid in that Court (at [9]). Brown v Haringey, by contrast, was a case which proceeded in the County Court. The Court of Appeal considered that the County Court (and the same reasoning would apply to the Family Court, because of the lack of specific statutory provision) could not make a legal aid order. By deduction, said McCombe LJ, probably such a grant of legal aid could only be made by the LAA (at [35]). No means assessment was required (King’s Lynn v Bunning at [31]).

The conclusion that application in the County Court must be to the LAA office was reached deductively by McCombe LJ by reference to a variety of provisions which enabled him – finally, and with considerable reliance on the earlier Kyng’s Lynn case – to conclude that the High Court and Court of Appeal could grant legal aid (para [34]). In the absence of the County Court having express power to grant (and the same would apply to the Family Court) then, he concluded, LASPOA 2012 s 18 left it to the LAA Director of Case Work to grant.

For family proceedings this then leaves Re Ramet (application for the committal to prison) [2014] EWHC 56 (Fam), where Sir James Munby P – sitting in the High Court – granted legal aid himself, by reference to the criminal legal aid scheme and to King’s Lynn v Bunning (paras [32] and [33]) but without distinguishing, as does Brown v Haringey between proceedings in the High Court (including the Family Division) or in the County Court or Family Court (though in the particular case it was not necessary for him to do so). Ramet represents the law for family proceedings in the High Court but must give way to Brown, for proceedings in the Family Court.

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