Lack of legal aid stalls contact hearing

10 June 2014 by Rosalind English

Q v Q [2014] EWFC 7 (21 May 2014) – read judgment

The President of the Family Division has adjourned contact proceedings by an unrepresented father pending the Ministry of Justice or any other responsible body to come up with the solution to the problem of one parent suffering an injustice due to the withdrawal of legal aid.

This was an application by the father, a convicted sex offender who spoke hardly, “if any” English, for contact with his son under the 1989 Children Act. When it transpired that the second of his offences had been committed during the currency of these proceedings legal aid was withdrawn.  As a consequence there was no funding either for the court attendance of the experts opining as to the father’s unsuitability, or for an interpreter enabling him to challenge their evidence. The mother’s representative therefore sought summary dismissal of the application and an order for no further applications.

Such an order however was not forthcoming because it was obvious to the court, from the reports regarding the father’s unsuitability for contact with the child, that a “significant part” of the analysis was dependent upon the accounts given to each expert by one party or the other.  The reports suggested that the applicant posed a risk of sexual harm to his own son, but because their contents could not be forensically tested, an “extreme” order of the kind sought by the mother could not be granted without breach of the father’s rights:

the court is required to deal with this matter “justly” and by ensuring “so far as is practicable” that the case is dealt with “fairly” and also “that the parties are on an equal footing.” That is the obligation of the court under domestic law. It is also the obligation of the court under Articles 6 and 8 of the European Convention. Despite what Miss Spooner says, I am left with the strong feeling that I cannot deal with the matter today justly and fairly by acceding to her submission.

Sir James Munby was presented with a “pressing need” to explore whether there was any other way of overcoming the twin problems of funding the attendance of the experts and the funding of the father’s representation.  It is a well established principle of Strasbourg jurisprudence that Article 6 obliges states to afford individuals the means to present their cases properly and satisfactorily, and that right covers public funding for legal representation (Airey v Ireland (Application no 6289/73) (1979) 2 EHRR 305). Mantovanelli v France (1997) 24 EHRR 370 underlines the significance of the right to an adversarial hearing guaranteed by Article 6 specifically in the context of an expert’s report which was “likely to have a preponderant influence on the assessment of the facts by [the] court.”

There were few possible routes around this problem, one being to require the Legal Aid Agency to bear the father’s costs as well as the mother’s, or for the court (as a public authority bound by the Human Rights Convention) to pay for the proceedings at its own expense. Both solutions ultimately land the bill at the door of the taxpayer. It will be interesting therefore to see what suggestions are made in the adjourned proceedings, whether by the Secretary of State for Justice or the Minister for the Courts and Legal Aid.

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