MG JG v JF (1st Respondent) JFG (a Child through the Guardian) (2nd Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 10 March 2015 |
| Neutral Citation | [2015] EWHC 564 (Fam) |
| Court | Family Division |
| Docket Number | Case No: HX13P00744 |
| Date | 10 March 2015 |
[2015] EWHC 564 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Leeds Civil Hearing Centre,
Coverdale House, LS1 2BH
Mr Justice Mostyn
Case No: HX13P00744
and
and
Marisa Allman for the 1 st Applicant
Sarah Greenan for the 2 nd Applicant
Samantha King for the 1 st Respondent
Helen Cain through the Guardian for the 2 nd Respondent
Hearing dates: 24 & 25 February 2015
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
This is my judgment on the application by MG and JG for a costs allowance to be paid by JF. The application is made under Schedule 1 to the Children Act 1989. No other relief is sought under Schedule 1.
The subject matter of the principal application for which funding is sought is a private law children matter proceeding under section 8 Children Act 1989 concerning JFG, who is now aged 7. As I will explain, the case is complex both factually and legally. For this reason it has been transferred to the High Court. It is not yet concluded and there will need to be at least one further hearing before a final order can be made. Both MG and JG instruct counsel under the Direct Access scheme. They have already enlarged the mortgage on their property by £20,000 to pay costs. This notwithstanding, counsel are now owed fees. In addition MG and JG owe fees to experts. Counsel have made it clear that they will not continue to act until arrears of fees are paid and there is an assurance that future fees will be paid. This is perfectly reasonable. The fees that they have charged in the past, and propose to charge in the future, have been heavily discounted from the market rate already, and that is a worthy reflection of the best traditions of the Bar. But it is not reasonable to expect them to work for nothing. Their families, and the staff of their chambers, need them to earn reasonable fees.
JFG is separately represented by a guardian and by solicitors paid under a legal aid certificate. JF is of reasonable means and privately pays for representation by experienced counsel instructed under the Direct Access scheme.
On 1 April 2013 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO") came into force. It removed legal aid from private law children proceedings save in those exceptional cases where domestic violence is a central feature. In such a case the alleged victim, but not the alleged perpetrator, might receive legal aid. Otherwise, at a stroke, 63 years of state funding of cases such as this was swept away. Had that "reform" not taken place both MG and JG would have been entitled to legal aid, although in JG's case subject to a contribution, estimated to be £1,004 1. With the state washing its hands of MG and JG they now look to JF to fund their representation.
Had MG and JG been in receipt of legal aid, or had they been of means and able to pay for their representation from their own funds without hardship, it is inconceivable that JF would be ordered to pay their costs. In the decision of the Supreme Court of Re T (Children) [2012] UKSC 36, [2012] 1 WLR 2281 it was confirmed that orders for costs in children cases would only be made where reprehensible behaviour or an unreasonable stance was proved against the respondent (see paras 4, 14 and 44). It cannot be said that JF is guilty of such conduct here.
Sections 49 to 54 of LASPO put the powers of the court to award a costs allowance on a statutory footing in relation to divorce and civil partnership dissolution proceedings. It is hard to understand why the government felt so strongly about the removal of legal aid from ancillary relief proceedings given that the statutory charge meant that it would recover the costs it had funded, with interest. The award of a costs allowance in ancillary relief proceedings does not normally give rise to complaints of injustice as the claimant can validly argue that she is only seeking an advance on her undivided and undistributed share, and the effect of the award can always be reconsidered and reflected in the ultimate discretionary disposition. These considerations just do not apply in children proceedings, and particularly so in section 8 proceedings.
In my decision of Rubin v Rubin [2014] EWHC 611 (Fam) at para 13 I set out a compendium of the governing principles under the new statutory provisions.
The new statutory provisions do not apply to applications to fund children proceedings, whether those proceedings concern the child's welfare or are for financial relief for the child under Schedule 1. In paras 14 and 15 of Rubin I stated:
"Curiously, the new statutory provisions do not extend to proceedings under Schedule 1 of the Children Act 1989, the Inheritance (Provision for Family and Dependants) Act 1975 or Part III of the Matrimonial and Family Proceedings Act 1984. In such proceedings the application will continue to be for an interim order for this purpose (see, in relation to Schedule 1 proceedings, M-T v T [2007] 2 FLR 925, G v G (Child Maintenance: Interim Costs Provision) [2009] EWHC 2080 (Fam), [2010] 2 FLR 1264 and CF v KM [2011] 1 FLR 208), and the principles in Currey v Currey (No 2) [2006] EWCA Civ 1338, [2007] 1 FLR 946 will continue to apply. In that case Wilson LJ stated at para 21 that the applicant must show that he or she cannot reasonably procure legal advice and representation by any other means. Moreover, the subject matter of the application will always be relevant as will be the reasonableness of the applicant's stance in the proceedings.
In my opinion the principles set out in para 13 ought to apply, with the necessary modifications, where an order is sought for costs funding in proceedings under Schedule 1 of the Children Act 1989, the Inheritance (Provision for Family and Dependants) Act 1975 or Part III of the Matrimonial and Family Proceedings Act 1984. Obviously, the first sentence of principle (x) will not apply…."
In CF v KM [2011] 1 FLR 208 Charles J stated at para 92:
"All cases are different, or have different aspects, but in my view it is clear that it is more likely than not that it would benefit the child if the mother was represented in both the s. 8 proceedings and the Schedule 1 proceedings. This accords with the conclusion I reached in M-T v T and the conclusion reached by Moylan J in G v G. In large measure, this view is based on the generally recognised advantages flowing from competent representation, and there being an "equality of arms" in an investigatory as well as in an adversarial process."
In this case it is my firm view that it is impossible for MG and JG to be expected to represent themselves having regard to the factual and legal issues at large. There would be a gross inequality of arms, and arguably a violation of their rights under Articles 6 and 8 of the European Convention on Human Rights and Article 47 of the European Charter of Fundamental Rights. So even though it cannot be said that JF has behaved reprehensibly or unreasonably he is the only realistic source of costs funding, subject to whatever contribution MG and JG should make from their own very limited resources. Some may say (and have said) that this is grossly unjust; I myself refrain from comment.
Civil legal aid for private law children proceedings was introduced by the Legal Aid and Advice Act 1949, subject to means testing. The Act was the product of the deliberations of Lord Rushcliffe's committee in 1945. It was part of the rolling out of the welfare state by the post-war Attlee government. It has rightly been described as the fourth pillar of the welfare state, the others being health, education and social security. Initially over 80% of the population satisfied the means test; this fell progressively so that by 2007 only 27% did. The right to legal aid in private law family proceedings was preserved in the Legal Aid Act 1988 and in the Access to Justice Act 1999. In 2005 the state funded about 45,000 such cases at a cost of about £130m.
Following the general election of May 2010 the new coalition government published in November 2010 the consultation paper "Proposals for the Reform of Legal Aid in England and Wales". In its foreword the then Lord Chancellor wrote:
"Legal aid must also play its part in fulfilling the Government's commitment to reducing the fiscal deficit and returning this country's economy to stability and growth. The proposals on which I am consulting are therefore designed with the additional aim of achieving substantial savings."
In para 4.11 it stated:
"The scheme in its current form is no longer sustainable financially if the Government is to meet its commitment to reduce the public financial deficit. We have therefore had to make tough decisions about where best to target resources."
At para 4.67:
"Given the need to direct resources at the issues of highest importance in a fair and balanced way, we consider …that legal aid is not routinely justified for ancillary relief proceedings and private law family and children proceedings. But we recognise that where there is an ongoing risk of physical harm from domestic violence, different considerations apply. In these cases, we consider that the provision of legal aid is justified where the client may be unable to assert their rights and may face intimidation because of risk of harm."
At para...
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...Cost of Contact Proceedings) [2011] 2 FLR 991. 10. H v H FCMC 1969 of 2007 judgment of 3 October 2007. 11. MG and JG v JF and JFG [2015] EWHC 564 (Fam) (10 March I do not intend to go through these in detail here, but suffice it to say that it was of some interest to see how the law had dev......