A report published by the Office of the Children’s Commissioner in a Child Rights Impact Assessment of changes to civil and prison law legal aid since April 2013 has highlighted the worrying impact on children and young people that legal aid changes since 2013 have had, ( available here http://www.childrenscommissioner.gov.uk/content/publications/content_873)
The first in-depth rights based examination of the impact of legal aid changes on children since 2013 shows that in 70% of private family cases one or both parties did not have legal representation compared with 54% who had it previously.
Maggie Atkinson, Children’s Commissioner for England said:
“The human cost of legal aid reforms is clearly immense. Behind the evidence in our research are countless heart rending stories of children and vulnerable young adults whose lives have been seriously affected by their inability to access legal representation.”
The Child Rights Impact Assessment found a wide range of rights in the UNCRC were likely to be negatively impacted including:
- Article 9: The right not to be separated from parents without due process;
- Article 28: The right to an education;
- Article 19: The right to freedom from maltreatment;
- Article 3: The best interest of the child being the primary consideration- due to the lack of legal support for their views and experiences to be considered by decision-makers;
- Article 12 – the right of the child to be heard and for his or her views to be given due weight. (http://www.childrenscommissioner.gov.uk/content/press_release/content_554)
The findings confirm what those of us seeking to provide access to justice for children find on a frequent basis. It is all too often children that are suffering because of the cuts to legal aid.
Barrister Garden Court Chambers (the views expressed in this article are the authors alone)
29th September 2014
Rachael Rowley-Fox explores the suggestion made by Sir James Munby, the President of the Family Division, that courts should spend money to ensure that justice is done in the wake of the legal aid cuts.
Sir James Munby, President of the Family Division has declared in a joint judgment that the court service may have to pay for legal representation when legal aid has been refused. Munby LJ examined three separate cases – Q v Q, Re B, and Re C. He stated that:
“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.” Continue reading
Problem Judges should have real life lessons was the headline I read last week, although what it actually said was, “ Problem Parents ‘should have contraception lessons’ “ (Independent 11th June 2014).
In context this was one of many comments reportedly made by the current president of the Family Division, James Munby. He was talking more globally about the effective role of courts that are taking a more inquisitorial role in family cases which are heard in the Family Drug and Alcohol Court (“FDAC”). He reportedly said that in FDAC courts, “The judge is able to built up a personal rapport with the mother and father.” – “as they meet with the parents sometimes on a fortnightly basis without their lawyers”. And he went on to the reported comment about “contraception lessons” for “problem parents”.
What the article spoke to me about was the acute need for judicial diversity for the legal system to have integrity and effectiveness within our democracy. His comments highlighted the need for judges from different backgrounds from the top to bottom of our judiciary. For those not well versed in who makes up our judiciary – Munby shares the typical characteristics. ‘Sir James Lawrence Munby (born 27 July 1948) is a British judge who is President of the Family Division of the High Court of England and Wales. Munby was an undergraduate at Wadham College, Oxford, where he is now an Honorary Fellow’ (wikipedia). He does of course have the other essential attributes – a white male judge.
Imagine the worlds apart, the potential for rapport with someone who has had such an elite beginning of life for the ‘problem parent’. Is it contraception lessons?, or lessons on dealing with the pain in life of poverty, hopelessness and despair that are needed? Losing a baby and desperately wanting/needing one: is there a lesson out there in that?
It was striking to me that the comment was even made because the case where it’s a lesson in contraception that is needed must be so very very rare. But maybe if I was also of the world of the white, privileged male and an oxbridge graduate with the chums I have I too would share that view and make that comment publicly. (A fuller version of the article can be found here http://www.telegraph.co.uk/news/uknews/law-and-order/10889225/Give-contraception-to-problem-families-with-up-to-15-children-top-judge-says.html) Rebekah Wilson (views of this author alone)
While over 1000 children under the age of 10 give evidence to the courts in England and Wales each year, very few do so in the family courts. Ian Peddie QC argues that the interests of justice would be well-served if more did so.
The presumption against children giving evidence in the family courts was removed by the Supreme Court in March 2010 in Re W (Children)  UKSC 12. This led to the Family Justice Council producing its Guidelines in relation to children giving evidence in family proceedings. Continue reading
Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons)  EWHC 270 (Fam) is a recent case in which Mrs Justice Pauffley is critical of a practice which had developed in a Family Proceedings Court of the Local Authority being expected to provide draft facts and reasons for use at hearings.
“Equally and just as importantly, it is difficult to view the Justices as having been independent and impartial if, as happened here, they simply adopted the local authority’s analysis of what their Findings and Reasons might comprise. The Court of Appeal has recently made clear that the wholesale incorporation of such a draft is impermissible: see Crinion and anor v IG Markets Ltd  EWCA Civ 587. As Sir Stephen Sedley observed,
“Unequivocal acceptance of one party’s case has always posed a problem for judges. To simply adopt that party’s submissions, however cogent they are, is to overlook what is arguably the principal function of a reasoned judgment, which is to explain to the unsuccessful party why they have lost…. (T)he possibility of something approaching electronic plagiarism is new, and it needs to be said and understood that it is unacceptable. Even if it reflects no more than the judge’s true thinking, it reflects poorly on the administration of justice: for … appearances matter.”
69. Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again.”
A query arose in a recent case of a colleague as to whether or not a direction to provide Facts and Reasons in a case where an agreed private law order was to be made. In discussion we thought NL applied equally to agreed orders. The Family Proceedings Court agreed although it slows down the Court list, it must be right that all orders are properly justified by the Court.
What now for agreed threshold criteria?