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'Views may differ as to whether the “exceptional” funding scheme is working effectively, a matter on which I express no opinion. If the scheme is indeed 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 8 or 9 cases a year.' (para )He continued:
'The absence of public funding for those too impoverished to pay for their own representation potentially creates at least three major problems: first, the denial of legal advice and of assistance in drafting documents; second, and most obvious, the denial of professional advocacy in the court room; third, the denial of the ability to bring to court a professional witness whose fees for attending are beyond the ability of the litigant to pay.' (para )Citing Art 6 and the right to a fair trial, Sir James Munby said:
'Article 6 guarantees the right of “practical” and “effective” access to the court. In the case of a litigant in person, the question is whether, without the assistance of a lawyer, the litigant will be “able to present her case properly and satisfactorily”: Airey v Ireland (Application no 6289/73) (1979) 2 EHRR 305, para 24.' (para )The President, arguably, submits a direct challenge to the government when at para  he says:
'In the ultimate analysis, if the criteria in section 31G(6) are satisfied, and if the judge is satisfied that the essential requirements of a fair trial as required by FPR 1.1 and Articles 6 and 8 cannot otherwise be met, the effect of the words “cause to be put” in section 31G(6) is, in my judgment, to enable the judge to direct that appropriate representation is to be provided by – at the expense of – the court, that is, at the expense of HMCTS.'He continued by setting out three caveats to his judgment:
‘The judgment’s significance is as a signal to policymakers. It says that in private law Children Act proceedings where exceptional funding is not granted, and interpreters or experts deemed necessary to resolve proceedings justly are put out of the court’s reach; or Article 6 and 8 rights are put at risk because legal representation is not funded by the LAA - for example, where an alleged perpetrator is set to cross-examine an alleged victim - then the court will consider ordering costs against HMCTS, on the basis that some part of the public purse has to meet the state’s obligations. This is really an exhortation to the MoJ and LAA to sort things out before matters reach that stage.’
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