Family legal aid and funding: January 2015
Guest post by David Burrows
Funding case law: ‘advantage’, applicants
A fresh batch of legal aid and funding cases has appeared since mid-December last year; and of these the news is that the much publicised (by the President of the Family Division) parents in Re D (A Child)  EWFC 2;  CN 64, have a legal aid certificate. I return to this later.
Three other cases bear upon funding; and the result, for the Ministry of Justice, is more or less a draw (perhaps with advantage, just, to the applicants):
- R (Gudanaviciene) v Director of Legal Aid Casework  EWCA Civ 1622;  WLR (D) 54 saw clear words from the Court of Appeal in (mostly) upholding the decisions of Collins J as to legal aid exceptional case determinations (ECDs: see Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012) s 10);
- Re K and H (Children: Unrepresented Father: Cross-Examination of Child)  EWFC 1;  CN 27, HHJ Bellamy sitting as a Deputy High Court judge firmly told HM Courts and Tribunal Service that they must pay for a legal representative to cross-examine for the court a vulnerable witness; and, then, the real set back,
- R (Rights of Women) v Lord Chancellor and Secretary of State for Justice  EWHC 35 (Admin) (RofW): the QBD Divisional Court found that the prescriptive bases for grant of domestic violence legal aid were lawfully made within the Lord Chancellor’s powers under LASPOA 2012.
Exceptional case determination
ECDs, when used (per LASPOA s 10(3)), are the most important get-out-of-jail free card in the depleted hand dealt to legal aid lawyers under LASPOA 2012. By the same token to understand such potential as there is in s 10(3) is essential for all civilian (including family) lawyers. In Gudanaviciene  EWCA Civ 1622 the Court of Appeal analysed and defined the s 10(3) jurisdiction; and explored the lawfulness of the Lord Chancellor’s case worker Guidance on it (see below).
Section 10(3) explains when an ECD should be made, said the court. It is ‘exceptional’, not because of some rarity of grant, but because of the factors which give rise to it. ‘Exceptionality is not a test’ (para ), it is merely a descriptor. Thus (Gudanaviciene, para ) if a LAA (Legal Aid Agency) decision-maker ‘concludes that a denial of ECD funding would be a breach of an individual’s Convention or EU rights, he must make an exceptional funding determination’. This, in turn, his requires ‘an assessment of the likely shape of the proposed litigation and the individual’s ability to have effective access to justice in relation to it’. However, if the decision-maker cannot decide if there would be a breach of Convention or EU rights, s/he next goes on to consider the funding application under s 10(3)(b), namely the ‘risk’ of a breach:
‘The greater he assesses the risk to be, the more likely it is that he will consider it to be appropriate to make a determination. That is because, if the risk eventuates, there will be a breach…’
In any decision-making, the LAA case-worker must ‘have regard to guidance given by the Lord Chancellor about the carrying out of those functions’ (LASPOA 2012 s 4(2)). The Lord Chancellor has issued guidance in relation to s 10, namely Exceptional Funding Guidance (Non-Inquests) (the Guidance). But what if the Guidance says something different from the statute? This is where anyone – applicant, lawyer, decision-maker – concerned with the decision made in reliance on the Guidance must check the source power. Read the big print: ie the statutory source of the decision-making power.
In Gudanaviciene the Court of Appeal held that the Guidance, in certain respects, was unlawful. It made the gate through which an applicant must pass too narrow. The ‘critical question’ said the court is ‘whether an unrepresented litigant is able to present his case effectively and without obvious unfairness’ (para ). Crucial factors include: procedural complexity; ‘substantive legal issues’; what is at stake (in Gudanaviciene separation of the mother from her small child was in issue, and what the ability of the applicant to deal with her case. The balance was between:
 … It is not a requirement of article 6(1) that legal services be provided in all but the most straightforward of cases. On the other hand [it is not the law] that legal services are required only in such extreme cases.
Funding an advocate to the court to cross-examine a vulnerable witness
In Minimising the Inequality of Arms: Children proceedings and the right to a fair trial I wrote of H v L and R  EWHC 3099 (Fam);  2 FLR 162 where the Attorney-General arranged (as requested by the judge) for an advocate to the court (‘AtoC’) to be appointed to deal with a father’s cross-examination of a mother abused by him. The role of the AtoC was limited to such cross-examination and not as representative of the father (ie for the assistance of the court alone); and see Attorney-General’s Memorandum of 19 December 2001  Fam Law 229. Q v Q (No 2)  EWFC 31;  WLR (D) 372 considered how this assistance to the court would be capable of assisting the court where the Matrimonial and Family Proceedings Act 1984 (MFPA 1984) s 31G(6) applies (ie to enable a judge to ‘(b) … cause to be put… such questions… as may appear to the court to be proper’).
And then immediately after Christmas HHJ Bellamy did what amounts to the same thing as in H v L and R  EWHC 3099 (Fam). In Re K and H  EWFC 1;  CN 27 – the first of the family court decisions of the year – he ordered appointment of a representative to cross-examine a vulnerable witness (Y) ‘on the father’s behalf’ (para ). The father was unrepresented and unfunded (from a combination of choice and of inability to fund the amounts of costs involved). In the absence of an advocate to cross-examine, he must cross-examine Y (the daughter of his former partner) in proceedings where he sought contact to K and H. This was denied because of Y’s allegations against him. Judge Bellamy accepted the father’s unwillingness to cross-examine Y, and that it would not be right for the judge to do so on questions which went to the root of the issue before the court. He therefore directed that HMCTS should fund an advocate to cross-examine Y for the court; though he took the decision himself without routing it via the Attorney-General under his 2001 Memorandum.
Narrowness of legal aid domestic violence regulations
In RofW  EWHC 35 (Admin) the question for the court was whether the restraints on grant of legal aid for applications in the family court for domestic violence were intra vires (lawfully made within) the Lord Chancellor’s regulation-making powers under LASPOA 2012. Civil Legal Aid (Procedure) Regulations 2012 reg 33 imposes the rigidity on LAA case-workers and applicants for legal aid: a time limit before which violence is ignored; and a finite set of evidence of domestic violence is imposed by reg 33. Was this what Parliament intended; or should the regulation be quashed, or partially amended? Lang J (sitting with Fulford LJ) in the Divisional Court refused the application. She broadly accepted the general rigidity of the 2012 Act scheme; and that it was intra vires what Parliament intended. She stressed that the court must not permit itself to ‘substitute its views for those of Parliament’ (para ).
Some criticisms of reg 33 were ‘justifiable’, the judge felt; and there was a good arguable case that some victims were excluded by reg 33 (para ). Thus some victims may be excluded from courts by denial of legal aid (subject to being brought back in by the exceptional case determination provisions of LASPOA 2012 s 10(3):  EWHC 35 (Admin) at ). All that said, the court was not willing to go behind what it saw as Parliament’s scrutiny of the secondary legislation, nor to substitute its own views for those of the Ministry of Justice (was the court perhaps too deferential to the Ministry of Justice on this point?). The court rejected RofW’s quashing application.
Of D, of vulnerability and legal aid and things…
A parents’ case now proceeds under Children Act 1989 s 39 (discharge of a care order), subject to their now having legal aid (on an ECD basis). Re D (A Child) (No 2)  EWFC 2;  CN 64, (the neutral citation says No 2; but to my knowledge this is at least the fifth published outing for the case (though perhaps only the third for Sir James) was first issued as A Father v SBC  EWFC 6, Baker J (subsequently reported by ICLR as In re E (A Child) (Care Order: Change of Care Plan)  3 WLR 1733; free case summary at  WLR (D) 246 ). The LAA seems to have stood firm against Sir James’s harrumphing on varied legal aid fronts. There had been Human Rights Act 1998 jurisdiction question which seems largely – and unaccountably – to have drained into the family court sand. Most crucial – from the law reform point of view – Sir James’s primary concern remains. There is a real – perhaps unintended? – gap. Parents of children subject to a care order placed back at home, have no automatic right to funding – as is the parallel case with ‘special Children Act 1989 proceedings’ – if the local authority changes their mind, gives force (so to speak) to the care order and whisks the child away. Sir James was right to see real potential for unfairness – and, perhaps, discrimination – here.
And, finally, back to victims of domestic violence and children as witnesses alleging abuse: collectively termed, by some, ‘vulnerable witnesses’. Where do they fit in the legal aid palimpsest?
Summer’s blaze of family court ‘consultations’ included, amongst three consultation exercises, that of the Vulnerable Witness Working Group: see ‘Interim Report of the Children and Vulnerable Witnesses Working Group – 31 July 2014’ (Courts and Tribunals Judiciary). An aim of this group was to propose ‘a new mandatory (sic) rule… supplemented by practice directions (PD) and guidance approved by the President’). My response was submitted on 5 October 2014 (DB Family Law: Consultation on Children and Vulnerable Witnesses: Court proceedings).
One rule is plainly inadequate (all rules are ‘mandatory’). The speed at which the group is working is inadequate, too. Re K and H  EWFC 1 shows how important is but one aspect of this substantial subject: how to protect adolescents as vulnerable witnesses. Parties will be victims of domestic violence, and thus often vulnerable. Others need protection, such as Ms Gudanaviciene, the non-English speaking proposed deportee and mother of a small child (her lack even of English to wade through our law justified an EDC said the Court of Appeal). The ‘vulnerable witness’ aspect is but one which links the strands of this, still further, aspect of unmet legal need. Legal aid and court procedure for this varied group coalesce.
31 January 2015