The real judicial fight for legal aid funding
The Family Division seems to have given up on the real fight for legal aid (with the noble exception of HHJ Bellamy sitting as a High Court J; but he was turned down on appeal (Re K & H (Children)  EWCA Civ 543). Much sound and some fury comes from for instance Sir James Munby P and Mostyn J and expressions of regret from Holman J. The real work is being done in the Queen’s Bench Division, Administrative Court (and its Divisional Court) by the likes of Beatson LJ, Collins, Green and Ousley JJ and in the Court of Appeal (see https://dbfamilylaw.wordpress.com/2015/07/17/mr-justice-collins-and-is-v-laa-good-news-for-family-lawyers/ for the count-down of recent cases).
Time was when Munby J (as Sir James then was) would have rolled up his sleeves and weighed in alongside the admin law judges (see PGS below); but no longer. His latest rumbling – signifying, if not ‘nothing’, then little of concrete effect – is Re M (A Child)  EWFC 71 (4 August 2015). He starts his judgment with the relatively dramatic words: ‘ Once again I am faced with the plight of a vulnerable mother unable to pay the cost of family proceedings’; and he concludes it by the following declaration:
 … (c) the ongoing proceedings [in which the mother was involved] are accordingly a “special Children Act 1989 case” within the meaning of paragraph 2 of The Civil Legal Aid (Merits Criteria) Regulations 2013, SI 2013/104.
Re M: the background – a ‘vulnerable adult’ mother
The facts of the case were that M is a 3½ year old child. A supervision order and special guardianship order were made on 15 November 2013 in favour of a relative of the mother. She applied to discharge these orders; but said Sir James, in reality she was seeking a re-hearing of the ‘finding of fact hearing’ which resulted in the order because of ‘a breach of [European Convention 1950] Art 6’ (§). (Sir James does not embroil himself in any review of the ‘procedural quagmire’ which the Family Procedure Rules Committee have permitted themselves to enter (see eg http://www.familylaw.co.uk/news_and_comment/set-aside-and-appeals-a-procedural-quagmire#.VcIkj_mqqko): as to whether the Family Court even has power to re-hear cases; or should it be an appeal etc; but that is for another day…).
Sir James explained that the fact-finding hearing was conducted without the full extent of the mother’s ‘disability rendering her a vulnerable adult’ being known to the court. Yes, really; though it is hard to understand how that could have happened. He goes on:
 The application came before Judge Bond [the circuit judge] on 24 February 2015. It was opposed by the local authority. His judgment is dated 26 February 2015. He explained that he was concerned only with Stage 1 of the three-stage process explained in Re ZZ and others  EWFC 9. He expressed his conclusion in this way:
‘Article 6 provides an absolute right to a fair trial. That right cannot be diluted. The findings that the court made as to the mother’s reliability as a witness were central to the finding as to her possible role as a perpetrator of M’s injuries. In the light of the information which is now available it cannot now be said that the mother did receive a fair trial in December 2012.
‘I am therefore satisfied that she has provided solid grounds which satisfy Stage 1 of the Test.
‘I therefore give the mother leave to re-open the fact find (sic).’
European Convention 1950, IS and exceptional case funding
In IS v The Director of Legal Aid Casework & Anor  EWHC 1965 (Admin) (considered at eg http://www.familylaw.co.uk/news_and_comment/exceptional-case-funding-lord-chancellor-must-still-do-better#.VcJMmPmqqko), Collins J found that the Lord Chancellor’s guidance to his Legal Aid Agency case-workers was still deficient, and said of Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10(3) (exceptional case funding (ECF) for legal aid in cases where European Convention 1950 principles may be in issue) and family proceedings:
 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 [ie relatively simple] 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.
If IS was referred to Sir James, he does not mention it; and yet the italicised passage would seem to be M’s motehr to a tee (save that hers was not a simple case), especially if the circuit judges comments on the Art 6 position is factored in.
Judicial review: join the public body
In PGS (also known as Giltinane) v Child Support Agency  EWHC 423 (Fam),  2 FLR 857, Munby J was confronted not by the legal aid authorities as the applicable public body, but by the Child Support Agency. There he had no qualms about donning his Administrative Court wig and proceeding in judicial review (referring to an earlier Lincoln case, in which he had done the same):
 The issue in R (Marsh) v Lincoln District Magistrates Court, Secretary of State for Work and Pensions (Interested Party)  EWHC 956 (Admin) arose at a later stage in the enforcement process, but the essential vice in that case was the same as in this. Justices were given an erroneous figure by the CSA. I need not repeat everything I said in R (Marsh) v Lincoln District Magistrates Court, Secretary of State for Work and Pensions (Interested Party)  EWHC 956 (Admin). But in this case as in that, and for essentially the same reasons, I am satisfied that the decision of the justices cannot stand. If there is no other way to give the appellant the justice to which in my judgment he is entitled, the Administrative Court must give him a remedy by way of judicial review. And in this case as in that the mere fact that the appellant is out of time for making an application for judicial review cannot stand in the way.
 Although I have no power to extend the appellant’s time for appealing by way of case stated I do have jurisdiction to extend his time for applying for judicial review. Applications for permission to apply for judicial review out of time must be scrutinised with care, and good reason must be shown for extending time. But none of that can stand in the appellant’s way in this case. The fact is that the justices were, as is now conceded, given the wrong figure by the CSA. There was accordingly a miscarriage of justice. Once that fact comes to light the Administrative Court is duty bound to intervene, whatever the delay. In the present case, of course, it seems that the appellant had in fact tried to challenge the decision in time, but even if he had not I would have come to the same conclusion. As it happens I am a nominated judge of the Administrative Court and can make the necessary order without sending the appellant away to another court on another day.’
Legal Aid Agency and judicial review
I accept that the LAA was not a party to Re M; but surely someone could have undertaken to issue a judicial review application, the proceedings could have been dealt with alongside one another, and the LAA could have been urgently directed by a ticketed Family Division judge, to say why – one way or another (ie as ‘special Children Act 1989 proceedings’ or as ECF funding under LASPOA s 10(3) – the mother had not been granted a certificate.
Sir James’s declaration in § might do the trick; but a judicial review pre-action protocol letter immediately after Judge Bond’s February 2015 comments (set out above), with judicial review too follow, might surely have ensured this mother and her advisers legal aid funding much sooner? In the light of the Court of Appeal comments in December 2014 R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors  EWCA Civ 1622 this case did not – as far as I can see – need to await the later IS decision from Collins J, but that surely must have helped.
 More correctly, perhaps, a decision of Charles J, described by BAILLI as Birmingham City Council v H and others  EWHC 2885 (Fam) a decision of Charles I (sic) in which, as Sir James Munby P said in ZZ (at §) as: ‘In my view the approach [of the family court to earlier findings] has three stages. Firstly the court considers whether it will permit any reconsideration or review of, or challenge to, the earlier finding (here referred to by the parents as a review). If it does the second and third stages relates to its approach to that exercise. The second stage relates to, and determines, the extent of the investigations and evidence concerning the review. The third stage is the hearing of the review and thus it is at this stage that the court decides the extent to which the earlier finding stands by applying the relevant test to the circumstances then found to exist.