Q v Q
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 06 August 2014 |
| Neutral Citation | [2014] EWFC 31 |
| Docket Number | Case Nos: WJ10P00530 DX13P00730 |
| Court | Family Court |
[2014] EWFC 31
IN THE FAMILY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case Nos: WJ10P00530
DX13P00236
DX13P00730
Ms Judith Spooner (instructed by Hodge, Jones and Allen) for the mother in Q v Q The father in Q v Q appeared in person
Ms Judi Evans (instructed by Kelcey and Hall) for the father in Re B
Ms Lucy Reed (instructed by Battrick Clark) for the mother in Re B
Mr Richard Ellis (of Withy King) for the Child in Re B
Ms Janet Bazley QC and Mr Julien Foster (appearing pro bono instructed by the Bar Pro Bono Unit) for the father in Re C
Ms Lucy Reed (instructed by Battrick Clark) for the mother in Re C
Mr Stuart Fuller (instructed by local authority solicitor) for the local authority in Re C
Ms Donna Cummins (of Lyons Davidson) for the child in Re C
Hearing dates: 21 May 2014 (Q v Q); 7 July 2014 (Re B and Re C)
Sir James Munby, President of the Family Division:
I have been dealing with three entirely unrelated cases in the Family Court which nonetheless raise sufficiently similar issues to make it convenient for me to deal with them in a single judgment. The first, which I shall refer to as Q v Q, was last before me in the Family Court in London on 21 May 2014: Q v Q [2014] EWFC 7. The second, which I shall refer to as Re B, was before me in the Family Court in Bristol on 7 July 2014. It was a case in which His Honour Judge Wildblood QC, sitting as a judge of the High Court, had earlier given a judgment on 27 January 2014: Re B (A Child) (Private law fact finding – unrepresented father), D v K [2014] EWHC 700 (Fam). The third, which I shall refer to as Re C, was before me in the Family Court in Bristol on the same day, 7 July 2014.
Each is a private law case in which a father is seeking to play a role in the life of his child, who lives with the mother. In each case the problems with which I am faced derive from the fact that whereas the mother has public funding the father does not. In part these are problems which pre-date the implementation in April 2013 of the relevant provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). They are, however, problems which most practitioners and judges with any practical experience of the family justice system would recognise as having been very considerably exacerbated by LASPO.
Put very shortly, the effect of LASPO is that public funding is not, in general, available for private law children cases: section 9 and Schedule 1 of LASPO. So far as material for present purposes there are two exceptions.
First, public funding is available for those who have suffered or are at risk of suffering domestic abuse, or where the other party to proceedings is a risk to children: LASPO, Schedule 1, Part 1, paras 12 and 13 and regulations 33 and 34 of the Civil Legal Aid (Procedure) Regulations 2012.
Secondly, public funding is available in "exceptional" cases in accordance with section 10 of LASPO:
"(1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection ( 2) or (4) is satisfied.
(2) This subsection is satisfied where the Director –
(a) has made an exceptional case determination in relation to the individual and the services, and
(b) has determined that the individual qualifies for the services in accordance with this Part,
(and has not withdrawn either determination).
(3) For the purposes of subsection (2), an exceptional case determination is a determination –
(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of –
(i) the individual's Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach."
Guidance issued by the Lord Chancellor in accordance with section 4 of LASPO indicates in paragraph 6 that section 10(3)(b) is "to be used in rare cases" where the risk of the breach of material rights "is such that it is appropriate to fund". Paragraph 7 provides that:
"The purpose of section 10(3) of the Act is to enable compliance with ECHR and EU law obligations in the context of a civil legal aid scheme that has refocused limited resources on the highest priority cases. Caseworkers should approach section 10(3)(b) with this firmly in mind. It would not therefore be appropriate to fund simply because a risk (however small) exists of a breach of the relevant rights. Rather, section 10(3)(b) should be used in those rare cases where it cannot be said with certainty whether the failure to fund would amount to a breach of the rights set out at section 10(3)(a) but the risk of breach is so substantial that it is nevertheless appropriate to fund in all the circumstances of the case. This may be so, for example, where the case law is uncertain (owing, for example, to conflicting judgments)."
Paragraph 10 provides:
"Caseworkers will need to consider, in particular, whether it is necessary to grant funding in order to avoid a breach of an applicant's rights under Article 6(1) ECHR. As set below, the threshold for such a breach is very high … will withholding of legal aid make assertion of the claim practically impossible or lead to an obvious unfairness in the proceedings?"
The legality of this guidance was recently considered by Collins J in Gudanaviciene and others v Director of Legal Aid Casework and another [2014] EWHC 1840 (Admin). Having considered in great detail a mass of both Strasbourg and domestic case law, Collins J held (para 51) that the guidance "is defective in that it sets too high a threshold". He came to two further conclusions that are relevant for present purposes.
First, in relation to section 10(3)(a), he said this (para 44):
"It is difficult to see that, if certainty is the appropriate test, s.10(3)(a) could ever apply. It does not seem to me that certainty is the appropriate test nor does the language used in s.10(3)(a) require it. In order to establish a breach of a human right, an individual has to establish on the balance of probabilities that such a breach has occurred. ECtHR jurisprudence suggests that a high level of probability is required. I see no reason why that should not be applied in s.10(3)(a) since Parliament must be taken to have appreciated that that was how breaches could be established. This seems to me to be the correct approach if s.10(3)(a) is to have any sensible application. Thus if the Director is satisfied that legal aid is in principle needed when its refusal would to a high level of probability result in a breach, s.10(3)(a) is met and means and merits will determine whether legal aid is to be granted and to what extent. It may for example not be necessary to grant legal aid for more than advice, particularly as the obtaining of advice from a competent solicitor may save further cost by persuading the individual that he has no case or enabling him to present his application in a way which enables the decision maker or court to deal with it expeditiously and without the cost incurred in seeing whether a litigant in person does have valid points."
In relation to section 10(3)(b) he said (para 50):
"in Articles from which derogation is possible the risk can properly be considered to be the risk of a flagrant breach which does apply a somewhat higher test than a real possibility or a risk that is more than fanciful. If legal aid is refused, there must be a substantial risk that there will be a breach of the procedural requirements because there will be an inability for the individual to have an effective and fair opportunity to establish his claim … It follows that I do not entirely accept Coulson J's conclusion in [ M v Director of Legal Aid and Casework [2014] EWHC 1354 (Admin).] that the test whether the refusal would impair the very essence of the right leads to a conclusion that the grant of legal aid will only rarely be appropriate. The very essence is that in procedural terms it can be put forward in an effective manner and there is a fair process."
I understand that Collins J's judgment is subject to appeal.
The state of affairs on the ground
The effects of these changes have been dramatic.
There has been a drastic reduction in the number of represented litigants in private law cases. The number of cases where both parties are represented has fallen very significantly, the number of cases where one party is represented has also fallen significantly and, correspondingly, the number of cases where neither party is represented has risen very significantly.
In relation to "exceptional funding", on 11 February 2014 the Minister of State at the Ministry of Justice, Lord Faulks, was asked by Lord Bach whether section 10 of LASPO "is working as intended." Lord Faulks responded ( Hansard, Vol 752, col 529) that "the Government consider that the exceptional funding scheme is working effectively." He added:
"It is true that the number of applications has been much lower than expected and it is also true that very few have been granted, but we are satisfied that the system is working in accordance with the section."
Published statistics show that the number of "exceptional" funding applications granted in family cases between April and December 2013 was 8 (Ministry of Justice, Ad hoc Statistical Release, Legal Aid Exceptional Case Funding Application and Determination Statistics: 1 April to 31 December 2013, published 13 March 2014, page 5, Table 1) and between April 2013 and March 2014 was 9 (Ministry of...
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