Minimising the Inequality of Arms: Children proceedings and the right to a fair trial
Posted on 16th Dec 2014 in Points of Law
A buttress to the right to a fair trial under article 6 of the European Convention on Human Rights is the concept of ‘equality of arms’. This does not mean that where an opponent’s representation is paid for, every civil case justifies a grant of state funding; but, for example, in Muscat v Malta (2012) (Application no 24197/10)  ECHR 1601 it was said that it was not enough for a state only to guarantee access to a court:
 … but also [that a party has] the right to obtain a “determination” of the dispute by a court. It would be illusory if a Contracting State’s domestic legal system allowed an individual to bring a civil action before a court without ensuring that the case was determined by a final decision in the judicial proceedings.
Access to the court must include the ability, procedurally, to see the case through to a ‘determination’. This note considers to what extent – in certain relatively rarefied areas – any possibility of public (non-legal aid) funding offers scope for help to determination of a child case.
Over the past year Family Division judges (especially Sir James Munby P) have harrumphed – understandably – about the lack of legal aid; and Administrative Court judges have chipped away at the legal aid barriers. The Lord Chancellor is no doubt pleased with Sir James. Politicians crave attention, and Sir James’s attentions show his reforms are hitting the spot – again and again. But what have the harrumphs achieved? Have they helped parties to find another way to funded legal representation?
Two recent cases have highlighted the problems, namely Q v Q; In re B (A Child); In re C (A Child)  EWFC 31;  WLR (D) 372 (Sir James Munby P) and In re D (A Child)  EWFC 39;  WLR (D) 471 (Munby P) (a case preceded by A Father v SBC  EWFC 6;  WLR(D) 246 (23 May 2014) (Baker J) and Re D (A Child)  EWFC B77; (9 June 2014), HHJ Marshall). Both cases are full of ‘sound and fury, signifying’ – if not ‘nothing’ – then little on which legal principle can be said to bite, or on which the adviser can grasp to offer hope for payment of his/her fees by an impecunious parent.
State funding after Q v Q (August 2014)
In Q v Q Sir James Munby P contemplated whether children proceedings demanded that litigation funding be paid by the state in certain narrow circumstances (payment of a particular expert or for specialist assessment; or for an advocate to the court (see below)). Sir James raised questions as to the court’s power to order state funding.
Sir James’s discussion of possible funding by HM Courts and Tribunal Service (HMCTS: in essence the same budget from which legal aid is drawn: ie Ministry of Justice) proceeds thus: the court is a public authority (Human Rights Act 1998 s 6(3)(a)); it is prevented from acting in a way incompatible with European Convention 1950 (HRA s 6(1)); article 6 guarantees the right of practical and effective access to the court (Airey v Ireland (1979) 2 EHHR 305); Muscat v Malta (above); it is the court which decides whether appointment of an expert is necessary (Children and Families Act 2014 s 13(6)). Ergo: it may be for HMCTS to fund the expense (paras  and ).
If legal representation is needed for the court to discharge its duty under Matrimonial and Family Proceedings Act 1984 s 31G(6) (to enable an advocate eg to the court to cross-examine the victim for an abuser: see H v L (below)), then appropriate representation must, perhaps, be provided by HMCTS.
How can such funding actually be obtained?
(1) Direct application for HMCTs funding – Sir James’s comments suggest that – subject to means and merit – application should be made direct to HMCTS (would the office of the family court where the case is proceedings be able to help with an apt address?). It would be for HMCTS to identify a fund from which payment could be made. If they refuse, judicial review of their decision would – in principle, at least – lie to the Administrative Court; but only if Sir James’s initial assumptions as to grant are correct.
(2) Attorney General – In H v L and R  EWHC 3099 (Fam);  2 FLR 162, the Attorney-General (‘A-G’) 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 that 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 considered how this assistance to the court would be capable of assisting the court where 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’).
Assessors as a role in family proceedings are relatively overlooked. Senior Courts Act 1981 s 70 (applicable in the county courts (County Courts Act 1984 s 63) and in the family court: see MFPA 1984 s 31E) enables the court to appoint assessors if the court ‘thinks it expedient to do so’. Section 70 provides for appointment ‘of one or more assessors specially qualified’ so that the court can deal with the case ‘wholly or partially with their assistance’. FPR 2010 r 25.20 explains how this can be done. The assessor could be a person whose opinion, alongside decision-making, might assist the court – not dissimilar from the qualities of a jointly funded expert. The funding of such an assessor remains at large (s 70(2)), it must be said. (HHJ Marshall left the parties in Re D (9 June 2014) plainly in need of an independent social work witness: why not an assessor (see para -)?)
In Re Ramet (application for the committal to prison)  EWHC 56 (Fam) Sir James Munby P commented on what he saw as the limited availability of public funding in contempt cases. Whatever the limitations of civil funding, public funding in contempt cases is available under the criminal scheme (Criminal Legal Aid (General) Regulations 2013 reg 9(v)). It is understood the lawyers in Ramet are still struggling for payment. I know to my cost (in child support committal cases): getting money from the civil budget for a civil (sic) committal creates a mismatch of forms and concept which is beyond the competence of most Legal Aid Agency decision-makers.
Committal applications in Convention jurisprudence are criminal proceedings (Mubarak v Mubarak  1 FLR 698; Engel v The Netherlands (No 1) (1979) 1 EHRR 647). Application for funding is to the court by the individual whose committal is sought.
Lessons from administrative law proceedings: protected costs
The Administrative Court has developed a jurisdiction which protects an applicant for judicial review from an adverse costs order if their case is in the public interest and the applicant expects no personal gain (R (Corner House Research) v Secretary of State for Trade & Industry  EWCA Civ 192,  1 WLR 2600).
In the unlikely event that a parent is threatened with a costs application in children proceedings (though such was the threat in Re D that Sir James touched upon the costs protection point there), and where such proceedings are for the benefit of a child – says the parent – then a form of protective costs order (on Corner House principles) is not inconceivable.
15 December 2014