President of Family Division suggests courts should cover costs where legal aid cuts may impact access to justice

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.”

The problems caused by these unbalanced situations had been made significantly worse by LASPO (Legal Aid, Sentencing and Punishment of Offenders Act) 2012. LASPO introduced significant cuts to legal aid provision when it came into force last April. Sir James examined the restrictions introduced by LASPO. The Act removed legal aid from most private family law cases (i.e. disputes within families). However, legal aid is still available for cases in which domestic violence has been alleged and for “exceptional cases”. These include instances in which failure to provide legal aid could breach the European Convention on Human Rights. The fathers in all three cases had applied for exceptional funding or were considering doing so. 

LASPO’s effects have been considerable. There has been a significant reduction in the number of cases in which either one or both parties are represented, and a corresponding rise in the number of those in which neither party is represented, he explained. Funding is almost impossible to get with only eight “exceptional” funding applications being granted between April and December last year, and only nine granted between April last year and March this year. It was noted in the judgment that if the scheme is working effectively, then it might be thought that the scheme is inadequate, for the proper demand is surely at a level very significantly greater than eight or nine cases a year. It was also noted that there has been a large increase in the number of calls to the Bar Pro Bono Unit, which provides free assistance. The Bar Pro Bono Unit received 171 applications for assistance in 2012 and the number jumped significantly, to 291, during the following year. 

Munby LJ examined the circumstances of each of the three cases and the problems arising from the fathers’ lack of legal aid. Two of the cases involved allegations of rape and one of sexual assault. In Q v Q, legal aid had been refused because the father was a convicted sex offender. The judge said therefore: 

“…the cost [of representation] will, in my judgment, have to be borne by Her Majesty’s Courts and Tribunals Service (HMCTS). HMCTS will also have to pay the cost 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 cost of that should also be borne by HMCTS.”  

In the other cases where there had been an absence of legal representation, Munby LJ concluded that there had been a breach of the European Convention on Human Rights:

“…there may be circumstances in which the court can properly direct that the cost of certain activities should be borne by [the HM Courts and Tribunals Service] HMCTS. I emphasise that (the provision of interpreters and translators apart) this is an order of last resort.” 

However, such orders may not be appropriate, he added, “in less serious cases”.  Munby LJ went on to say that each case must be considered upon its own specific facts and merits.

The full judgment is available online.

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