Two senior judges have criticised the inaccessibility of civil legal aid to people with disabilities as a result of recent cuts to legal aid in the UK. Both judges were presiding over family law cases where vulnerable parents had been refused legal aid. The comments were made by Sir James Munby, president of the family division, and by Judge Louise Hallam. Judge Munby handed down a judgment saying that a state agency should pay the costs of legal representation in the case before him. He said that the fact that vulnerable parents were being refused legal aid was “profoundly disturbing” and “unthinkable”.
The case before Judge Munby, In the Matter of D (A Child),concerned whether a young boy’s parents were fit to look after him, or whether he be adopted outside the family. Generally, a parent whose child is subject to an application for a care order under the Children Act is automatically entitled to legal aid, irrespective of means. However as the child in this case was living at home under a care order and the parents were challenging a proposal to remove the child, the father was means-tested, and his modest income made him and the mother ineligible for legal aid. The father’s disposable monthly income was £34.64 over the limit when his means were assessed in May.
The matter was complicated by the fact that the father is a protected party because he has a learning disability, and it was necessary to invite the Official Solicitor to represent him as a litigation friend. As the Official Solicitor was unwilling to be exposed to the costs risks, the private solicitor representing the father on a pro bono basis also agreed to indemnify against any adverse costs order. According to the Judge Munby, “This is devotion to the client far above and far beyond the call of duty.”
Judge Munby stated “it is the responsibility – indeed, the duty – of the judges in the Family Court and the Family Division to ensure that proceedings before them are conducted justly and in a manner compliant with the requirements of Article 6 and 8 of the [European Convention on Human Rights].” Munby relied on the UK’s obligations under the UN Convention on the Rights of Persons with Disabilities and on a European Court of Human Rights decision with very similar facts, RP and others v United Kingdom [2013].
He found that for the parents to face the local authority without representation would be a “denial of justice” and so directed that their costs be funded by some or all of the local authority, the legal aid fund, or the Courts and Tribunals Service.
Meanwhile, Judge Louise Hallam also criticised the injustice caused by the cuts after presiding over a case wherein an illiterate mother of four, with poor sight and hearing, was forced to represent herself in a custody hearing.
The woman was refused legal aid, was forced to represent herself in court and Judge Hallam remarked that as a result of this she did not have the opportunity of a fair trial. She said, “if legal aid is being refused to people such as this, I am satisfied that more injustices will occur… A mother in her situation should have proper and full access to the court with the assistance of legal advice.” Her former husband was given legal assistance from the local authority which supported his claim for custody. Judge Hallam referred the situation to the Legal Aid Agency and Sir James Munby, as president of the family division.
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