An important way forward for clients in family law proceedings

The decision of Collins J in IS v The Director of Legal Aid Casework & Anor [2015] EWHC 1965 (Admin) – on 15 July 2015 – should be good news for family lawyers (see especially §[40], set out in full below); and by my calculation it takes the score as between legal aid applicants and the Lord Chancellor (Legal Aid Agency) in the Senior Courts to 5-2.

IS v LAA (above) represents a review by Collins J of the exceptional case funding (ECF) provisions of LASPOA 2012 s 10 in the light of:

  • R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 (‘Gudanaviciene 2’) where the Court of Appeal shared the adverse view of Collins J of the Lord Chancellor’s Guidance on ECF and largely allowed the appeals against his Gudanaviciene v Director of Legal Aid Casework and the Lord Chancellor [2014] EWHC 1840 (Admin), Collins J;
  • Exceptional Funding Guidance (Non-Inquests) (‘the Guidance’) revised in the light of Gudanaviciene (but see below; and see; and
  • Experience, as presented to him by the parties, of operation of the ECF scheme one year on from his own earlier Gudanaviciene decision of 14 June 2014.

IS had been one of the respondents in Gudanaviciene 2, but his appeal was abandoned since it was not necessary for him personally to pursue it. The Official Solicitor (with the Public Law Project instructing leading counsel for IS and the OS as his litigation friend) wanted to clarify the position as to the funding of litigation by vulnerable individuals (or who otherwise lacked capacity, eg as children or adults). There were worries that such parties to proceedings might not secure ECF funding. The case therefore came before Collins J as a test case (see §[5]).

Framework of the judgement

In a truly measured and carefully structured judgment Collins J set out his views on why the legal aid scheme still presented to him as unsatisfactory:

  • The law – such is the complexity – even to most lawyers – of the legal aid statutory provisions that almost one third of a long judgement is taken up by a summary of the applicable law ([7] to §[26]).
  • Operation of the scheme [40]-[65] – Collins J, from his independent stand-point, sees the scheme as ‘wholly deficient’ ([40]). ‘The scheme is not working as it should’ (§[42]). The judge considered that the approach of LAA decision-makers was ‘unhelpful’ (§[62]).
  • Protected individuals §[73]-[80] – the position of ‘vulnerable’ individuals in family proceedings has been under review by Family Division judges for over a year. A wider and more accurate term (ie to recognise parties, witnesses and the forms vulnerability can take) might be ‘protected individuals’. Collins J considers their and the OS role in relation to them and legal aid in detail.
  • Merits test and its European Court jurisprudence is dealt with at §[81]-[97], with a series of criticisms by Collins J of its operation by LAA:

[96] There are in my view two difficulties in the way the merits test has been applied. First, the requirement that in all cases there must be a even or greater than even chance of success is unreasonable. Secondly, the manner in which the LAA has assessed the prospects of success has been erroneous. The whole point of representation is that it will produce the chance of success which without representation will not exist….

Collins J takes the view that even the statutory merits (‘prospects of success’) test and the LAA approach to it, is wrong:

[97] …the circumstances of each case will be determinative and there can in my view be no doubt that the way in which merits [of civil legal services applications] have been approached has been flawed.’

Conclusion: ‘there must be changes’

The first and main ground of the judicial review application is summarised by Collins J thus:

[27] … [The] first ground is that the scheme as operated by the first defendant is intrinsically unfair because it does not enable those who need assistance in either making or resisting claims or ascertaining with proper expert advice from a lawyer whether they have a valid claim or defence which needs representation to obtain the necessary assistance. The result has been and continues to be that some of the most vulnerable are deprived of a fair hearing in that they are unable to present their cases effectively. Mr Hermer [counsel for IS] described this ground as an “evidence based impeachment of the operation of the ECF scheme”.

Collins J answers this ground (and a second relating to LAA dealing with urgent applications) as follows:

  • ‘There must be changes to the scheme’ ([105]):
  • Application forms are ‘far too complex’
  • The ‘obvious unfairness’ test in Gudanaviciene 2 must be set out in the application form
  • Provision of legal help for providers who assist must be considered by the Lord Chancellor
  • Operation by the LAA of the merits test is dismissed by Collins J in one short paragraph:

[106] The rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable.

  • The ECF scheme is not providing the safety net provided by ministers ([107]).
  • The ECF scheme is not in accordance with LASPOA 2012 s 10, in that ‘it does not ensure that applicants’ human rights are not breached or are not likely to be breached’.

IS and the family lawyer: a scheme which is ‘wholly deficient’

Though IS and Gudanaviciene (Ms Gudanaviciene’s case itself) were immigration cases, it is clear from what Collins J says that he considers the depredations of the LASPOA 2012 civil legal aid scheme and the ECF under s 10 to have fallen most heavily on litigants in the family courts. His assessment of operation of the scheme for ECF, especially in family cases, is:

[40] It is difficult to imagine a family case, particularly when there are contested issues about children, in which there would not be an interference with the Article 8 rights of either parent or the children themselves. Thus unless the party seeking legal aid could albeit unrepresented present his or her case effectively and without obvious unfairness, a grant of legal aid would be required. That does not mean that every case will require it: some may be sufficiently simple for the unrepresented party to deal with. Obviously if there is a lack of capacity even such cases may require legal aid. That issue I will have to consider in further detail later. But I am bound to say that I believe that only in rare cases, subject to means and merits if properly applied, should legal aid be denied in such cases. As it is now applied, the scheme is clearly wholly deficient in that it does not enable the family courts to be satisfied that they can do justice and give a fair hearing to an unrepresented party. While the problem may perhaps be less acute in other civil cases, I have no doubt that the difficulties I have referred to in family cases apply.

The Lord Chancellor Guidance – even in its revised form – must look wider than European Convention 1950 Art 6, says Collins J. For example many family cases, especially where children are involved, engage Art 8. It is as important that a litigant has a fair trial, as – especially in family, but also in some immigration cases – that Art 8 is considered (as Gudanaviciene 2 itself stresses). No article is of more importance than another (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593 per Lord Steyn).

And again the pejorative epithets are applied by Collins J. For example, as applied to the family courts, the scheme is ‘wholly deficient’. If it works as Collins J considers LASPOA 2012 s 10 should be operated by LAA, then ECF funding should be available for many more family courts cases.

Legal Aid Applicants v Lord Chancellor

And the score? Since March (when was written) the LA Apps have lost in the Court of Appeal against the Lord Chancellor in Re K & H (Children) [2015] EWCA Civ 543 (22 May 2015) but won in the High Court on IS. My tally is as follows:

Legal Aid Applicants (LA Aps)

  • JG v Lord Chancellor and ors [2014] EWCA Civ 656
  • R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622
  • R (ota Ben Hoare Bell Solicitors & ors) v The Lord Chancellor [2015] EWHC 523 (Admin), Green J
  • R (ota Letts) v The Lord Chancellor & Ors [2015] EWHC 402 (Admin); and
  • IS

Lord Chancellor (LAA)

  • R (ota Rights of Women) v Lord Chancellor and Secretary of State for Justice [2015] EWHC 35 (Admin);
  • Re K & H (Children) [2015] EWCA Civ 543 (22 May 2015)

It is not a good record for the upholder of our rule of law, to find that his judges so regularly consider that he and his department have acted unlawfully; but that is for another day. Family lawyers can now help their clients to take advantage of what Collins J and IS seems to offer them.

It is not a good record for the upholder of our rule of law, to find that his judges so regularly consider that he and his department have acted unlawfully; but that is for another day. Family lawyers can now help their clients to take advantage of what Collins J and IS seems to offer them.





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