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8 August 2014

President of Family Division: “Courts may pay for legal representation”

The President of the Family Division, Sir James Munby, has stated that Her Majesty's Courts and Tribunal Services, HMCTS, will have to fund parties' representation by lawyers in appropriate private law proceedings if the Legal Aid Agency refuses to do so.

Sir James Munby, sitting at the High Court in London, examined three separate cases (Q v Q Re B and Re C). In these cases, the President was faced with three private law children cases in each of which the mother had public funding but the father did not and therefore the fathers were unrepresented.

This is not an uncommon situation as 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 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 significantly.

The problems caused by these unbalanced situations have been considerably exacerbated by LASPO. LASPO is the Legal Aid Sentencing and Punishment of Offenders Act 2012 and it introduced significant cuts to Legal Aid provision when it came into force last April. The Act removed Legal Aid from most private family law cases. However, Legal Aid is still available for cases in which domestic violence has been alleged and for exceptional cases.

The President said that the three cases before him had “raised common and overlapping issues. 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. The problems caused by these unbalanced situations had been considerably exacerbated by LASPO”.

Re B and Re C raised a particularly difficult problem, arising out of the fact that in each case, the father was accused of rape and that in Re C, the father was also being prosecuted in the Crown Court. Therefore the President said that in each case “there was a pressing need for the father to have access to legal advice”.

In relation to the father in Q v Q, the President concluded that in the event that the father’s application for public funding under LASPO is unsuccessful, “The cost will in my judgment have to be borne by HMCTS. HMCTS will also have to pay the costs of providing the father with an interpreter in court. If the father is still unable to obtain representation, I will have to consider whether the costs of that should also be borne by HMCTS”.

The President concluded that “There may be circumstances in which the court can properly direct that the cost of certain activities should be borne by HM Courts and Tribunal Service. I emphasise that the provision of interpreters and translators apart, this is an order of last resort”. However, he added that “such orders may not be appropriate in less serious cases”.

Emma Alfieri from our family team commented: “These cases highlight the difficulties that individuals and the courts are experiencing following the cuts to Legal Aid provision”.