(European Court of Human Rights, 27 October 2015)
[The judgment and accompanying headnote has now published in Family Law Reports  1 FLR 186]
Costs – Legal aid – European Convention, Arts 6, 8 – Father denied legal aid in appeal to Supreme Court in private law children proceedings – Whether he had been denied effective access to the court and equality of arms
Please see attached file below for the full judgment.
The European Court of Human Rights found there had been no violation of Art 6 or Art 8 as a result of the father’s inability to obtain legal aid in private law proceedings in the UK Supreme Court.
In 2003 the father initiated proceedings to obtain parental responsibility and residence of his child. The following year the parents agreed that he should live with the mother and have contact with the father. A sheriff made an interlocutor. Subsequently, in 2010, a different sheriff found that there had been a material change in the circumstances and that it was in the child's best interests not to have contact with the father. He concluded that the previous interlocutor should be recalled.
The Inner House of the Court of Session dismissed the father's appeal but varied the 2010 interlocutor to make it clear that it only varied the previous one in respect of contact. There was no change to the father's parental rights.
The father sought to appeal to the Supreme Court but the Scottish Legal Aid Board refused to grant legal aid. Counsel and solicitors agreed to work pro bono and the Supreme Court waived its fees but the appeal was dismissed. The father now brought proceedings to the European Court of Human Rights complaining that the proceedings had not been concluded within a reasonable time and the refusal to grant legal aid had deprived him of equality of arms and effective access to the court.
In respect of the first complaint the UK made a unilateral declaration and offered to pay the father €7,700 and the court accepted that no further investigation of that part of the complaint was necessary.
In respect of the second complaint, it was a central concept of a fair trial in both civil and criminal proceedings that a litigant should not be denied the opportunity to present his case effectively before the court and that he should be able to enjoy equality of arms with the opposing side. Article 6(1) of the European Convention provided that the State had a free choice of the means to be used in guaranteeing litigants those rights. As the right of access tot he court was not absolute, it could be acceptable to impose conditions on the grant of legal aids based upon a number of conditions such as the financial situation of the litigants or the prospect of success. It was not incumbent on the State to ensure total equality of arms between the assisted person and the opposing party so long as each side was afforded a reasonable opportunity to present his case under conditions which did not place him at a substantial disadvantage in relation to his adversary.
The issue of whether legal aid was necessary to ensure a fair hearing would depend on the particular circumstances of each case having regard to what was at stake for the applicant, the complexity of the law and procedure and the applicant's capacity to represent himself. Consideration would need to be taken of the overall context and the extent to which the applicant had already enjoyed access to the court.
It was not the case that litigants involved in proceedings regarding fundamental aspects of the European Convention Art 8 right to family life were not granted an unqualified right to legal aid to pursue a claim indefinitely.
While there was no doubt about the importance of the matters at issue for the father, it was only in relation to the appeal to the Supreme Court that legal aid had been denied. As a result he was not forced to accept inferior legal representation. In fact, he had been represented by a highly qualified team. The Supreme Court's decision to waive its fees further facilitated the appeal in the absence of legal aid. Therefore, in the circumstances of this case, the father had not been prevented from effectively pursuing his appeal not had he been denied equality of arms. There had been no violation of Art 6(1) of the Convention.
(Application no. 76760/12)
27 October 2015
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of N.J.D.B.
the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Guido Raimondi, President,George Nicolaou,Ledi Bianku,Nona Tsotsoria,Paul Mahoney,Krzysztof Wojtyczek,Yonko Grozev, judges,and Françoise Elens-Passos, Section Registrar,
Having deliberated in private on 6 October 2015,
Delivers the following judgment, which was adopted on that date: