D (A Child) (No 2)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 07 January 2015 |
| Neutral Citation | [2015] EWFC 2 |
| Court | Family Court |
| Date | 07 January 2015 |
| Docket Number | Case No: SN14C00004 |
[2015] EWFC 2
IN THE FAMILY COURT
AT SWINDON
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case No: SN14C00004
Ms Deirdre Fottrell and Ms Marlene Cayoun (instructed by Withy King) for the father (a protected party acting by the Official Solicitor as his litigation friend)
Ms Sarah Morgan QC and Ms Lucy Sprinz (instructed by Goodman Ray) for the mother
Mr Leslie Samuels QC and Ms Hayley Griffiths (instructed by the local authority) for Swindon Borough Council
Mr Kambiz Moradifar (instructed by Stone King LLP) for the child D
Ms Martha Cover and Ms Sarah Tyler (instructed by T V Edwards) for the Association of Lawyers for Children (on 13 November 2014)
Hearing dates: 13 November, 2 December 2014
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
This judgment was handed down in open court
Sir James Munby, President of the Family Division:
The underlying issue in this case, as I noted on an earlier occasion, can be stated in a single sentence. Should a little boy, D, live with his parents, or, if they cannot adequately look after him, with other members of his wider family, or should he, as the local authority, Swindon Borough Council (SBC), argues, be adopted outside the family. At present, however, I continue to be focused on a different issue: the availability or not of legal aid for parents who find themselves in a situation where, to repeat what I have said before, it is unthinkable that they should have to face the local authority's application without proper representation.
The matter first came before me on 8 October 2014, following which I handed down a judgment on 31 October 2014: Re D (A Child) [2014] EWFC 39. In a postscript to that judgment I recorded (para 41) that, after I had sent the judgment to the parties in draft, I was informed that "the situation in relation to legal aid has moved on since the last hearing but has not been resolved." I said that it needed to be, before the next hearing, which was listed before me on 13 November 2014. It was not.
I stated (para 33) that I was "willing to hear further submissions from any interested State party, or indeed any other interested party." I directed (para 36) that:
"… there be a further hearing at which, assuming that the parents still do not have legal aid, I shall decide whether or not their costs are to be funded by one, or some, or all of (listing them in no particular order) the local authority, as the public authority bringing the proceedings, the legal aid fund, on the basis that D's own interests require an end to the delay and a process which is just and Convention compliant, or Her Majesty's Courts and Tribunals Service, on the basis that the court is a public authority required to act in a Convention compliant manner."
I said (para 37):
"Copies of this judgment, and of the order I made following the hearing on 8 October 2014, will accordingly be sent to the Lord Chancellor, the Legal Aid Agency, Her Majesty's Courts and Tribunals Service and the Association of Directors of Children's Services, inviting each of them to intervene in the proceedings to make such submissions as they may think appropriate. If they choose not to intervene, I shall proceed on the basis of the conclusions expressed in this judgment".
Following the handing down of that judgment I received an application to intervene dated 10 November 2014 by the Association of Lawyers for Children (ALC) and letters, each dated 11 November 2014, from Andrew Webb, the Immediate Past President, on behalf of the Association of Directors of Children's Services (ADCS), and from Shailesh Vara MP, Parliamentary Under-Secretary of State for Justice in the Ministry of Justice.
In its application the ALC made a number of observations, to three of which I draw attention. The first is that:
"Even if pro bono representation is an option, it will rely on the parent who may lack capacity and suffer from learning disabilities or difficulties recognizing that there is some action that can be taken or application that can be made. The parent will then need to persuade a lawyer to represent him or her on a pro bono basis. This expects too much and is no safeguard against breaches of their Article 6 and 8 rights."
The second is that:
"The father's lack of capacity, and both parents' learning disabilities, are not uncommon. This is not an isolated case. Research has indicated that of parents involved in care proceedings, a significant number suffer from mental health issues and learning disabilities … Estimates of the number of "care parents" with learning disability vary but they are disproportionately represented compared to the population at large."
A number of references to the academic literature in support of that proposition are cited. Finally, the ALC makes these two assertions:
"Section 10 of LASPO is not being implemented so as to provide the safety net for the most vulnerable.
Placement orders in particular should be included in those proceedings for which non-means-tested and non-merits-tested public funding is provided."
I draw attention to two of the points made by the ADCS. The first is that:
"From the perspective of a child on a journey to a permanent placement, ADCS would argue that the impact of a care order and a placement order are effectively equivalent; the same is true of their impact on the child's parents. ADCS would therefore argue that equivalent checks and balances are required before either order is made. There appears to be no logic to support treating the orders differently simply because they have become decoupled in complex proceedings
In this case it would appear to ADCS that the application of the current legal aid rules has led to an injustice and could create a detrimental impact on the child in question. We would agree with the court that the State has created a problem by introducing these rules and should therefore find a means of resolving the problem."
The second relates to the likely impact on local authorities, were the funding burden in cases such as this to fall on them:
"ADCS would point to the fact that any shift of a financial burden from one arm of the State to another is likely to lead to a direct, further reduction in service.
It is the ADCS view, based on our knowledge of Local Government, that if a new burden were to be picked up by a Local Authority, it would almost certainly lead to a reduction in provision in a closely related area of expenditure. Local Authorities have, effectively, fixed cash limits within which to operate in any financial year and are required by law to balance their budgets. Whilst Local Authorities have a strong track record in the flexible management of very large budgets, the impact over time of the government spending decisions has been to decimate some services and to limit that traditional flexibility. The likely response of most Local Authorities, in the current financial circumstances, would be to pass a new burden in respect of children and families directly to the Director of Children's Services to be managed within budget."
The letter from the Minister said:
"I am grateful for the opportunity to intervene but the Ministry of Justice does not propose to do so in proceedings in this case."
It continued:
"I understand that the position has moved on considerably from that at the time of the hearing on 8 October and following handing down of your judgment. It may assist if I set out briefly the current position based on information provided by the Legal Aid Agency (LAA):
• Following a request for further information by the Legal Aid Agency, D's parents provided further details in respect of the case and of their financial position at the end of September. As a result, they were assessed as being financially eligible to receive civil legal aid subject to a contribution.
• On 8 October D's parents were therefore offered funding for representation in respect of proceedings under section 39 of the Children Act 1989 on the basis that they each pay a monthly contribution of £96.38 and a one-off contribution of £133.77 from their capital. I understand that both D's parents intend to accept this offer
• Subject to confirmation that these contributions have been received, substantive legal aid certificates will be issued by the LAA.
• On 28 October (just 3 days before your judgment was handed down on 31 October), the local authority applied for a placement order application under section 22 of the Adoption and Children Act 2002. At the time your judgment was handed down the LAA had no record of an application from D's parents for legal aid in relation to these proceedings although it is understood that since that time an application from one of the parents has been received and is under consideration by the LAA.
• Legal aid is available in relation to such proceedings, subject to means and merits. I understand that, provided these tests are satisfied, D's parents would not be required to pay any additional contribution to their legal aid costs beyond that already called for."
The Minister added:
"I acknowledge that in this case D's parents and their representatives have faced considerable uncertainty for some time over the legal aid position. However, it is a necessary feature of means and merits testing that legal aid cannot be made available until information has been provided which shows that the statutory tests have been met. The LAA will act promptly in assessing applications but is reliant on the accuracy and currency...
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