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….

Open justice in family courts; but more is needed…


Legal aid and ‘lawyer-free’ zones


Sir James Munby, who retired last year as President of the Family Division, is reported as saying of the family courts (Guardian 11 February 2019):


The effect of Laspo [the 2012 Legal Aid, Sentencing and Punishment of Offenders Act], with its withdrawal of legal aid from most private law disputes, has been to make the family court an increasingly lawyer-free zone, with ever increasing numbers of litigants having to appear unrepresented and without legal advice.


Owen Bowcott in the Guardian continued:


‘The “comparative rarity of published judgments in private law cases” had added to the difficulties, Munby argued. “The restrictive provisions of the now elderly and hopelessly obsolescent section 12 of the Administration of Justice Act 1960 mean that, absent a published judgment, there is very little that a journalist who has exercised the statutory right to attend a family court hearing can actually publish about the case.”


It needs more than press vigilance to put right what is wrong in the family courts. The cases which really go wrong are at the lower end of the pile where the increasingly stretched press will only rarely tread. It needs proper – and properly paid – legal aid; properly trained and reassessed legal aid lawyers (come back continuing professional development); and a fully-fledged inspection of judges system (like school inspectors, if they still exist).


District judges’ justice


Three recent cases of show how woeful is the standard of justice operated by some district judges on a daily basis. A wife (A) who lived in South Wales had her case transferred accidentally by her local court to Luton. (I was involved thanks to the ‘Bar Pro Bono Unit’: they stretch a point and let people like me in.) A could not afford the travel expenses to Luton for the final hearing of the claim by her husband (B) on their house. The local district judge made an order, in her absence (later she was allowed to attend by telephone). She must sell her home without – as the circuit judge on appeal found – the district judge having given any thought to their respective housing needs. He failed to explain how he arrived at a derisory (for her) pension sharing order and ordered her to pay costs (when courts normally do not do so in finance cases). On appeal a year later the circuit judge allowed A’s appeal (ie wiped out the district judge’s order) and transferred the case to Bristol (not far from where A lived: she had lost confidence in her local court) where the fight goes on….


In the second case the husband (D) had left home 12 years before and had left the wife (C) to look after their son unsupported by him, and to repay the mortgage. (Again I was in court thanks to the pro bono unit (now called Advocate)). The deputy district judge said that was all tough. C must pay D half the value of the house or sell it (their son (now 18) was still living there). C appealed. The circuit judge said D must reduce what the deputy district judge had given him. D agreed to settle for a quarter and for C to have time to raise it.


The last is a case where a district judge heard that one solicitor (S) had acted for a wife (E), her husband (F) and his brother (G) where the district judge knew that she had been ‘advised’ by S to sign a mortgage on the couple’s first home, which gave G 75% of its value on sale or divorce in exchange for G lending half the money – now repaid – to buy the house in 1997. As the law stood when the house was purchased it was well known that a wife in E’s position must be told to obtain separate legal advice on such a blatantly prejudicial deal. Solicitors may not act where the interests of their clients conflict (here it was E v F and G (brothers)). A district judge ignored this conflict and the underlying law. He sent the case to another district judge for trial with E being told she must agree that G should have his 75% on sale. The district judge’s findings made at a negotiating hearing (Financial Dispute Resolution, when no findings should be made) will have to be revisited; but E must wait to see if another judge will override the first district judge’s decision.


On the same day as the Guardian article the Law Society’s Gazette reported the closure of a litigant in person help organisation in Bournemouth. The family court in Bournemouth is one of those in the cases above.


Appeals in each of these cases – and the cost of those appeals in court time (quite apart from the worry for those involved) – might easily have been avoided if lawyers were there on legal aid. And – dare I say? – judges must be supervised from time to time by inspectors who know what they – the judges – should be doing. Criticism from the Court of Appeal is, increasingly, not enough to get lesser judges to put right their ways.


David Burrows

11 February 2020

Legal aid for domestic abuse: a legislative morass


Legal aid for ‘domestic violence’


Human rights legislation may enable a judge to tell the Minister of Justice to answe: are your new legal aid laws lawful? One of the ironies of the Tory legal aid legislation in 2012 (in force from April 2013) is that its complexity increases in inverse proportion to the extent it enables people to consult lawyers to explain it. The more complex the legal aid legislation becomes, the more difficult it is to get help just to explain what it means.


Take domestic abuse. Even that has three definitions. The law calls it ‘molestation’ – a wide spectrum of behaviour which a person (mostly women) should not have to put up with. It is also called ‘domestic abuse’: perhaps to cover a wider range of behaviour than ‘domestic violence’, which is what legal aid legislation calls it. ‘Molestation’ is the term which the judges must apply.


In 1976 Parliament had finally begun to recognise the difficulties of trapped unmarried women and their children – ‘battered wives’ – who could not exclude their violent partners (as could their married sisters) from their homes. A 1976 domestic violence Act was passed. In 1978, early in life the Act the House of Lords (now Supreme Court) considered a case which asked whether Parliament meant to allow an unmarried woman to force a man from a home in his name.


Lord Scarman and domestic violence


Lord Scarman (a great twentieth century judge) defined domestic violence as: ‘conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. [So too is] conduct which makes it impossible or intolerable, as in the present case, for the other partner, or the children, to remain at home’.


A recent case in the Court of Appeal has stressed that judges have deliberately not defined the term ‘molestation’. The principle applies that – like an elephant – molestation is difficult to define; but a family judge knows molestation when the judge sees it. And so, it might be thought, should be the law for legal aid; but…


So what of legal aid for the abused woman (it is mostly women)? The Ministry of Justice announced in early 2018 (https://www.gov.uk/government/news/changes-to-domestic-violence-evidence-requirements-come-into-effect) in an orgy of self-congratulation: ‘Changes to evidence requirements in private family law disputes have come into effect. There will no longer be a time limit on abuse evidence…’. Eventually the reader realises the press release is about legal aid which may be available to victims of domestic violence or child abuse. ‘To qualify, applicants must provide objective evidence of the abuse while their case is also subject to means and merits tests.’ This ‘objective evidence’ is in a list of 22 paragraphs which tries to do exactly what judges and parliament has said should not be done: it tries to define what the ‘domestic violence’ elephant is.


Now, imagine you are a single mother – Kath – with two small children. You have been forced to leave home by your partner, Nick. He applies to a court for contact with the children. You say has been abusive, and occasionally violent; though there is no physical evidence – there are no marks on you to show a doctor. It is, in Lord Scarman’s words ‘impossible or intolerable [for you] or the children, to remain at home’. You are scared at the prospect of seeing him in court.


Can you get legal aid? You can’t pay for a lawyer to tell you. You have no money. You have minimal state benefits, Nick is paying no maintenance for the children, and you have debts which are out of control. No one will lend you the money to pay for a medical report (required, in your case, by the new regulations), still less to pay for a lawyer (even if the lawyer does not charge).


You try to find out from the internet whether you can get help. If you are patient – and perhaps internet savvy – you will find a definition of ‘domestic violence’ in the modern legal aid legislation (alluringly called Legal Aid Sentencing and Punishment of Offenders Act 2012). The type of help you want is at para 11 of Sch 1 to that Act (in all, 154 sections and 24 Schedules).


What the Act does not tell Kath clearly is that to get legal aid you need to refer to three factors, each in separate unnamed regulations: first to find out if you earn too much money (Kath passes that test); next, whether your case has a prospect of success; and finally for the evidence for legal aid (the regs in question here)?


There are 21 forms of ‘evidence’ listed (some of which leave me baffled). Only the medical report applies to Kath. Without the report she fails at the first hurdle. And even if she can pay, the doctor can only repeat what Kath says. But her lawyer could do exactly the same when they complete Kath’s legal aid application. The medical report, if it does not document injuries, is a legal aid placebo, just something for the Legal Aid Agency to put on Kath’s file.


Legal aid laws, unlawful


Let us stand back from the legal aid legislation morass. European Convention 1950 (ie human rights) says Kath is entitled to a fair trial. Legal aid must be made available or that right may be impeded. Because she cannot pay for a medical report she cannot get the evidence required by the swish new regulations. Without that she must face her former partner alone in court. He may pay for a lawyer (he earned the income in the household); but it is he who, she says, has abused her.


There is a strong argument that the legal aid laws are unlawful. They are impenetrable to the reader who needs them. People like Kath and her children may be denied a fair trial and will suffer. This is where Human Rights Act 1998 comes in. If the laws are so complicated and you – having no means to pay for a lawyer – are denied legal aid, then how can you get to court for any trial at all (or defend yourself)? You cannot get the fair – or any – trial to which you are entitled.


So Mr Gauke: how legal are you laws when it comes to legal aid and domestic violence?

‘The Right to Justice’: political slogan or something more sinister?

Right to justice report


The Right to Justice (Fabian Policy Report, September 2017 http://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission_Right-to-Justice-Report-WEB.pdf) (the Report) produced by an informal ‘Commission’ chaired by a labour politician (Willy Bach) provides a snappy – and potentially sinister – politician’s title for a serious subject. The idea that politicians can bestow a ‘right to justice’ is needlessly mixed up with the more serious subject of right to representation (or legal aid).


Most people in United Kingdom believe that they already have a right to justice; and so far as they believe that they are right. Politicians must not ever be permitted to interfere with it. ‘Right to justice’ is called a ‘fair trial’ in European Convention 1950 though the idea probably goes back 1,000 years before 1950. And, with the exception of the editor of the Daily Mail, most people probably think that justice is what British judges do very well (see eg the Miller case and EU withdrawal (R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583) and the UNISON case (below)). In these totalitarian (or ‘populist’ as the journalists call it) times we do not need to be given justice, or any right to it, by any politicians.


The extent to which the Report can be taken seriously may be judged – sad to relate – by the fact that almost the whole of page 8 is taken up with a picture of a gavel. Gavels have nothing to do with English law (though can be seen in films in use by US judges). In UK (as far as is know) only auctioneers use gavels.


Bach: areas of reform


The Report has three main areas of proposed reform:


  • It proposes a statute to enshrine a ‘right to justice’ alongside a ‘right to reasonable legal assistance’. These must be backed by a ‘Right to Justice Act’ and a Justice Commission.
  • It suggests reforms to the administration of legal aid; and a fairer scheme for means-testing reforms. It proposes changes to the scope of work which can be done on legal aid.
  • It urges greater education in law and access to legal information.


This article takes the second area first. A number of helpful reforms are proposed. Many are a welcome return to pre-Legal Aid Sentencing and Punishment of Offenders Act 2012 conditions. A legal aid scheme has three elements: a means test (which the Bach proposals will simplify and make more generous to applicants); a scope test (what proceedings will be covered by a certificate: the Report proposes extensions to this); and a merits test (does a case justify the tax-payer spending money on it?). The merits test has become increasingly complex (see now Civil Legal Aid (Merits Criteria) Regulations 2013), especially since Access to Justice Act 1999.


Calculating the merit of a case, within the terms of the merits regulations is hard for a lawyer. It must seem prohibitively difficult for an intending legal aid applicant. If this report is to be taken any further those who deal with it must address the complexities of the merits test. They could start – and even finish – with what was in Legal Aid Act 1988 (and earlier legal aid acts) for relative simplicity.


‘Right to justice’


‘Right to Justice’ is a political slogan. With its proposed ‘Right to Justice Act’ and ‘Justice Commission’, it recalls George Orwell’s Nineteen Eighty-Four. The idea that there could be a ‘Justice Commission’ where hitherto justice had been the preserve of the judiciary is straight out of Orwell. And Orwell would have been the first to point out, that what a politician gives another politician – especially in these increasingly totalitarian times (the modern Tory party want to control Parliament in a way not justified by its minority standing; and the Labour left seeks to increase its sway within the Party) – can take away.


One thing our judges do very well is justice. They do not need a commission to ‘guide’ them. Indeed the idea that Parliament should contemplate such a thing is constitutionally abhorrent. Politicians have sheared off rights already: LASPOA 2012 and benefits reforms are two obvious examples; and the National Health Service seems likely to follow. Judges seek to constrain politicians. In a country governed by the common law, their ability to provide a fair trial – justice, ‘right to a fair trial’ – should not needlessly be surrendered to politicians.


In the recent R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51 Lord Kerr gives a brief background ([66]-[85]) to justice in England and Wales, now in the United Kingdom as a whole. Many in England have had access to justice since Anglo Saxon times; and certainly since Magna Carta (1215). By the 1620s Sir Edward Coke wrote of the right of ‘every subject of this Realme, for injury done… by any other subject may take his remedy by the course of law, and have justice’. For Blackstone in his Commentaries (1765-1769) it was the ‘right of every [man] of applying to the courts of justice for redress of injuries’. Both of these writers used the term ‘justice’. There was no need to justice, or the right to it, to be created or defined by statute.


Justice against totalitarianism


Justice is a judge’s job. It is developed by the common law. As Lord Kerr explained (at [68]): ‘Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced’. Justice, by another name, is a ‘fair trial’. European Convention 1950 declares – it does not create – the existence of a right to a fair trial (Art 6.1). The Convention was the work in large part of British common lawyers. They were well aware of the long-standing right to justice which was a fundamental part of our common law. They needed no act of parliament to create that right. It is something which comes anyway, and as a matter of right, as a result of living within the jurisdiction of the English courts.


This country does not need another quango in the form of an Orwellian ‘Justice Commission’: to provide ‘guidance’ or ‘monitoring’ to judges. Judges have extensive case law to guide them. If they need to be ‘monitored’ that is already done by appellate courts. And a commission could be more sinister. In times of encroaching totalitarianism (Trump in the US; the AfD in Germany; the nationalist parties around Europe) then any right with which politicians can interfere must be guarded very carefully; and especially so if they plan to interfere with the judiciary. Scope of legal aid is for the politicians to decide upon. They must never be allowed to tamper with the scope of justice.


If by a ‘Justice Commission’ is meant someone to keep an eye on the operation of legal aid; then insofar as the legal aid administrators fail to do that, should not MPs do it themselves?


Right to legal representation


What this report is trying to do to is to redevelop the right to legal representation (ie legal aid) which was so drastically cut back by LASPOA 2012. A Legal Aid Act or a Right to Legal Representation bill, may not provide the politicians with such seductive titles; but this is what is wanted. ‘Right to Justice’ as a slogan is silly or sinister, according to the way things go. Legal representation paid for by the tax-payer is what is proposed.


Politicians are entitled to make political decisions on legal aid; whilst any ‘right to justice’ must be out of bounds to them. Politicians can decide on the extent of each of the tests of eligibility for legal aid: means, merit and scope. These are the political variables. Where does the political cursor stop? The Tories have made the means test more miserly. LASPOA 2012 has made the scope test both narrower than before, and absurdly complex (beset by legislative double and triple negatives). Superimposed on the scope test is an increasingly more obscure merits test. If clarity and accessibility by the public, where individuals must rely on it, is the test of good modern legislation the Tory legal aid legislation fails spectacularly.


This aspect of the Report is imaginative. It proposes return of legal aid for a number of areas of litigation, including aspects of children law; housing and immigration; and for judicial review and inquests. Representation by specialist lawyers is what defines legal aid. It is that which is so precious to the rights of ordinary people. As legislation and case law accrete, so the law and its application become more complex.


Lay education in law


Finally, the Report emphasises the importance of education in law for the general public. The internet provides access to the raw material of law which is impressive: Government web-sites (eg for legislation – not always up-to-date – and other government material) and BAILLI reports provide a superb array of source material. For the lay person – and indeed for many lawyers – the problem is that is undigested. BAILLI cannot provide head-notes to simplify the presentation of case reports: how could they? Statutory material fresh off the page is rarely easy to digest.


Yes, education in law should be provided; but that is a matter for the education departments – with help from lawyers – not for those concerned with the operation of the law. But to ease education in law, first more clarity is essential.


Lord Bingham’s first rule in his Rule of Law (Penguin 2010) was that ‘a law must be accessible and so far as possible intelligible, clear and predictable’ (pp 37-38). You must know, and that means understand, what the law is if you are to rely on it. Rights are only real if you know about them. Is my child entitled to school-transport; can I do anything about the leylandii my neighbour has planted and which is blocking my view; what right do I have as a child to express a view in my parent’s proceedings about me? Each of these may create rights for the person concerned; but they are not rights if that person does not know exactly what they are and how to do something about them.


This requires two things: clearer laws with more straightforward legal procedures; and, where need be, a right to legal representation for those who cannot otherwise afford it. The second – legal representation – is a question for legal aid. The first, clarity of law, is a massive – but fundamental – subject. Even if only at a preliminary (ie pre-advice) stage, an individual should know of rights. Otherwise that individual will not know that there is something to see a lawyer about.


A right is no right if you cannot understand the law which defines it


If you have a pain which does not get better, you can go and see a doctor. Under the UK National Health system the consultation is free. If you have a right which is being interfered with – or, like school transport, may not be being properly dealt with by your local authority – you need first to know there is a legal pain which could be made better. If you do not even know it is a treatable pain, because you do not know you have the right in the first place, your life is needlessly, or unfairly, the poorer.


So first, the need is for a Legal Aid Act; or a ‘right to legal representation act’, or even an ‘access to justice act’. Call it whatever the politicians will, so long as it is not called, still less that it pretends to give, a ‘right to justice’. Secondly, whatever the right to representation act is called, let it be written clearly. Anyone – including a child who, for example, wishes to know what legal part she or he can play in the child’s parents’ court proceedings over the child – must know that they have the right to seek legal advice if their income is such as to justify free legal assistance; and that, if need be, they can apply to a court for help.


If a person has a right to representation but cannot understand the triple negative law that defines that right, it is not a right.