Special measures, HMCTS funding and ‘lay advocates’


HMCTS funding of intermediaries in family proceedings


In times where politicians are seeking to curb the powers of judges, do we need to worry where Mr Justice Keehan, a family judge, uses his inherent jurisdiction – he doesn’t use that word; but what else can it be? – in Re C (Lay Advocates) [2019] EWHC 3738 (Fam) (13 December 2019)  to order HMCTS to pay for ‘lay advocates’. Lay advocates is surely a misnomer? The term ‘intermediaries’ (already known to the law: see Family Procedure Rules 2010 (FPR 2010) Pt 3A) might have been more apt. The Legal Aid Agency (LAA) had refused to pay.


Re C was a care case where the parents were said to need help to understand the proceedings. Medical advice included that they need ‘the support of their solicitor at all formal meetings and all court hearings’ and ‘the support of a lay advocate at all formal meetings and all court hearings’ (see [11]).


‘Measures’ for helping vulnerable witnesses and parties in family proceedings are dealt with in FPR 2010 Pt 3A (introduced in November 2017). Rule 3A.8(4) says that the new rules were not intended to ‘direct’ that ‘public funding be available’ to pay for these measures.


HMCTS payments are dealt with by HMCTS ‘internal’ Guidance to family courts, which mentions payment for intermediaries for a party or witness. It is a modest two paragraph document. Keehan J makes no mention of this guidance (set out in full in Family Court Practice at 2.766[2]); nor of ‘intermediaries’ or ‘measures’ which are the terms of art under Pt 3A.


We do not know if Keehan J specifically relied on the HMCTS Guidance or on Pt 3A (probably not). What seems relatively clear is that he could have referred to the appointment of ‘lay advocates’ as ‘intermediaries’ and thus as  ‘measures’ under Pt 3A, which might have helped with funding from LAA. It would have given the whole exercise a statutory – rather than discretionary – basis.


Legal aid and HMCTS: payment for measures under Pt 3


The provision for ‘measures’ (known, more felicitously as ‘special measures’ under Youth Justice and Criminal Evidence Act 1999 in criminal proceedings) was included in  FPR 2010 Pt 3A (from November 2017). Apart from payment privately (not an option in care proceedings) there are three sources of help: solicitors themselves (but Keehan J said there was not time for them to help these vulnerable parents), payment by HMCTS (or so Keehan J held) and legal aid. The subject has not been well-thought through by the family courts administration. Both – legal aid and HMCTS – require a civil servant to exercise discretion in an area where there seems to be little guidance:


  • HMCTS – Their guidance says that there is no statutory duty for HMCTS to pay. Payment may be allowed ‘if this is directly relevant to matters to be dealt with in the court room and there is a judicial order to this effect. HMCTS is not able to fund the general provision of intermediaries outside the court room’. Keehan seems to have gone beyond this; but let us see if HMCTS pays.


  • LAA – Keehan J makes no attempt to get to grips with what the LAA powers were in Re C to amend the parents’ certificate to grant an authority for payment of the intermediaries’ fees. He just accepted their refusal to pay as determinative; but we do not know what appeal the parents’ lawyers or judicial review processes the parents had undertaken.


If these were really ‘advocates’ of some form, their assistance is ‘legal’ – and therefore to be covered by legal aid – not by some other funding. Keehan J could have required the LAA to come to his court to explain themselves. Maybe HMCTS will pay up (however do you enforce Keehan J’s order where HMCTS were not parties to the application?)? Maybe they will always do so when the question arises again?


Funding: Parliament v the judges


A real problem for judges in cases where parties are of low, or limited, means is that payments from public funds are uniquely the province of Parliament: that is, of statute and delegated legislation. How tax-payer’s money is paid out is carefully guarded as the right of Parliament and has been since about the time of the 1381 Peasant’s revolt.


Let us hope Keehan J’s inherent jurisdiction adventure into public funding will not prove to be another nail in the coffin for the judge’s v politics debate signalled by the Tories….