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Family Law

The leading authority on all aspects of family law

11 AUG 2014

State funding family cases after Q v Q; Re B; Re C [2014] EWFC 31

David Burrows

Solicitor Advocate

@dbfamilylaw

Funding family proceedings

In Q v Q; Re B; Re C [2014] EWFC 31, [2014] 2 FLR (forthcoming) (06 August 2014), Sir James Munby P considered the extent to which certain children proceedings demanded that particular litigation expenses be paid for by state funding. This raises questions as to whether the court has power to order funding from another public body (eg Ministry of Justice which is responsible for HM Courts and Tribunal Service (HMCTS) and Legal Aid Agency (LAA)): and if so how individuals might be entitled to such funding apply for it.

In practical terms it raises questions also as to how such assistance as Sir James envisages might be applied for; and whether there are any alternatives to legal aid available to the courts or to a party for state funding of family proceedings. (At the outset it should be stressed: what is in issue here is the finding of court proceedings, not the costs which are dealt with after the event. How can the parties themselves (or the court as appropriate) fund any part of a case or any expenditure involved?)

There is very little scope for funding of private cases by another party to proceedings. Indeed one of the few statutory provisions for other party funding is provided for in LASPO 2012, ss 49-51 (legal services orders: amendment to Matrimonial Causes Act 1973). These provisions are part of LASPO 2012 Part 2, which makes limited provision for private funding of cases; but outside MCA 1973, s 22ZA (slightly enhanced for family proceedings in specific circumstances by the common law ‘costs allowance’) there is no statutory provision for private or public funding by courts.

Sir James’s discussion (paras [46]–[49], [54]–[57] and [77]–[79] in Q v Q (No 2)) for court awarded public funding from HMCTS starts from the premise that the court is a public authority (Human Rights Act 1998, s 6(3)(a)). It is prevented from acting in a way incompatible with European Convention 1950 (HRA, s 6(1)). European Convention 1950, Art 6 guarantees the right of practical and effective access to the court; and in the case of a litigants in person whether this is achievable without legal assistance (Airey v Ireland (1979) 2 EHHR 533) (para [48])). It is the court which decides whether appointment of an expert is necessary (CFA 2014, s 13(6)); and if their attendance at court is required then it may be for the court to bear the cost (paras [56] and [57]). Similarly, if legal representation is needed for the court to discharge its duty under MFPA, s 31G(6), then appropriate representation must be provided at the expense of HMCTS (paras [69], [79]).

Three indirect possibilities suggest themselves and, subject to the need for much more research, are put forward here:

(1) Application direct to HMCTs for funding

The logic of Sir James’s judgement is that if certain conditions as to means, merit and lack of alternative funding (private or legal aid) are met, then application can be made direct to HMCTS, perhaps by reference to the family court office in which the case is proceeding.

  1. Merit would probably be dictated by the terms of case management directions; and with such direction an applicant would then have to show. 
  2. That s/he had no source of private funding. 
  3. That legal aid was not available under the LASPOA 2012 scheme.
  4. That his/her means – perhaps by reference to a legal aid means determination (Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013) – justified assistance.

It would be for HMCTS to identify a fund from which payment could be made; and if they refused judicial review of their decision would lie (as against LAA but with no statutory back-bone for the applicant) to the Administrative Court.

An inevitable question which then arises is: does Q v Q and Sir James’s obiter comments, alongside the existing scheme – however that scheme may be perceived by judges – create any form of legitimate expectation amongst potential applicant that funding will be provided by HMCTS? The President of the Family Division has an administrative function; but in that function does not normally include spending taxpayer’s money. It therefore seems unlikely that he can be in a position to raise an actionable expectation (see eg de Smith’s Judicial Review (7th edn) Woolf et al Chapter 12: a legitimate expectation requires a decision-maker to have given the applicant a clear expectation that s/he will receive a benefit from a scheme or decision).

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(2) Assessors

SCA 1981, s 70 (and an equivalent provision for county courts in in County Courts Act 1984, s 63) enables the court to appoint assessors:

70 Assessors and scientific advisers
(1) In any cause or matter before the High Court the court may, if it thinks it expedient to do so, call in the aid of one or more assessors specially qualified, and hear and dispose of the cause or matter wholly or partially with their assistance.
(2) The remuneration, if any, to be paid to an assessor for his services under subsection (1) in connection with any proceedings shall be determined by the court, and shall form part of the costs of the proceedings.

FPR 2010, r 25.20 explains how this can be done. That either of s 70 or s 63 apply in the family court is not as clear as it might be. The assessor could be a person whose opinion – including decision-making – might assist the court. Their role in many ways would be similar to that of a jointly funded expert. The issue of costs remains (s 70(2) above); but so far as the court has power to award costs against a third party (SCA 1981, s 51(3)), perhaps it could order assessor’s costs from public funds (ie HMCTS).

(3) Attorney General

In H v L and R [2006] EWHC 3099 (Fam), [2007] 2 FLR 162 Roderic Wood J and the Attorney-General arranged for an advocate to the court to be appointed for the father limited to cross-examine a vulnerable witness for the mother. That was dealt with under the Attorney-General’s Memorandum of 19 December 2001 [2002] Fam Law 229 (see eg Family Court Practice 2014 at p 2869: this memo remains basis on which the A-G deals with requests for appointment of an advocate to the court). A request comes to the A-G from the court. The memo with appointment if the A-G so decides (paras 3–8), and in particular it stresses that an advocate to the court ‘represents no one’ (para 4): his/her role is limited to that professionally adopted by him/her (ie not eg on instructions from any party). Request is made by the court to the A-G (para 9). It is for the Attorney General to decide whether assistance will be provided and on what terms (para 10).

Memorandum – Requests for the Appointment of an Advocate to the Court

(1) The memorandum has been agreed between the Attorney-General and the Lord Chief Justice. It gives guidance about making a request for the appointment of an advocate to the court (formerly called an amicus curiae).

(2) In most cases, an advocate to the court is appointed by the Attorney-General, following a request by the court. In some cases, an advocate to the court will be appointed by the Official Solicitor or the Children and Family Court Advisory and Support Service (CAFCASS) (see paras 11 and 12 below).

The role of an Advocate to the Court

(3) A court may properly seek the assistance of an advocate to the court when there is a danger of an important and difficult point of law being decided without the court hearing relevant argument. In those circumstances the Attorney-General may decided to appoint an advocate to the court.

(4) It is important to bear in mind that an advocate to the court represents no one. His or her function is to give to the court such assistance as he or she is able on the relevant law and its application to the facts of the case. An advocate to the court will not normally be instructed to lead evidence, cross-examine witnesses, or investigate the facts. In particular, it is not appropriate for the court to seek assistance from an advocate to the court simply because a defendant in criminal proceedings refuses representation.

(5) The following circumstances are to be distinguished from those where it will be appropriate for the court to seek the assistance of an advocate to the court:

(i) where a point of law which affects a government department is being argued in a case where the department is not represented and where the court believes that the department may wish to be represented;

(ii) where the Attorney believes it is necessary for him to intervene as a party in his capacity as guardian of the public interest;

(iii) where the court believes it is appropriate for a litigant in person to seek free (pro bono) assistance;

(iv) where, in a criminal trial, the defendant is unrepresented and the advocate to the court would be duplicating the prosecutor’s duty as a minister of justice ‘to assist the court on all matters of law applicable to the case’;

(v) where in a criminal case in relation to sentencing appeals there are issues of fact which are likely to arise and the prosecution ought to be represented, or it would be reasonable to ask the prosecutor to be present and address the court as to the relevant law.

(6) In the first of these five cases, the court may invite the Attorney to make arrangements for the advocate to be instructed on behalf of the department. In the second, the court may grant the Attorney permission to intervene, in which case the advocate instructed represents the Attorney. In neither case is the advocate an advocate to the court.

(7) In the third case the court may grant a litigant in person an adjournment to enable him or her to seek free (pro bono) assistance. In doing so, the court should bear in mind that it is likely to take longer to obtain free (pro bono) representation than funded representation. In contrast to an advocate to the court, a free (pro bono) legal representative will obtain his or her instructions from the litigant and will represent the interests of that party. His or her role before the court and duty to the court will be identical to that of any other representative of the parties. Accordingly it will not be appropriate for the court to take such a course where the type of assistance required is that provided by an advocate to the court.

(8) In the fourth case the prosecutor’s special duty is akin to an advocate to the court. In the fifth case, in relation to appeals against sentence where the defendant is represented, it may be preferable to request the attendance of the prosecutor, who will be able to address the court on issues of fact and law. It would not be proper for an advocate to the court to take instructions from the prosecuting authority in relation to factual matters relating to the prosecution. An advocate to the court should only be asked to address the court as to the relevant law.

Making a request to the Attorney-General

(9) A request for an advocate to the court should be made by the court as soon as convenient after it is made aware of the point of law which requires the assistance of an advocate to the court. The request should set out the circumstances which have occurred, identifying the point of law upon which assistance is sought and the nature of the assistance required. The court should consider whether it would be sufficient for such assistance to be in writing in the form of submissions as to the law, or whether the assistance should include oral submissions at the hearing. The request should ordinarily be made in writing and be accompanied by the papers necessary to enable the Attorney to reach a decision on the basis of a proper understanding of the case.

(10) The Attorney will decide whether it is appropriate to provide such assistance and, if so, the form such assistance should take. Before reaching a decision he may seek further information or assistance from the court. The Attorney will also ask the court to keep under review the need for such assistance. Where the circumstances which gave rise to the original request have changed, such that the court may now anticipate hearing all relevant argument on the point of law without the presence of an advocate to the court, either the court or the Attorney may ask the advocate to the court to withdraw.

Requests to the Official Solicitor or Cafcass 

(11) A request for an advocate to the court may be made to the Official Solicitor or CAFCASS (Legal Services and Special Casework) where the issue is one in which their experience of representing children and adults under disability gives rise to special experience. The division of responsibility between them is outlined in Practice Notes reported at [2001] 2 FLR 151 and [2001] 2 FLR 155.

(12) The procedure and circumstances for requesting an advocate to the court to be appointed by the Official Solicitor or CAFCASS are the same as those applying to requests to the Attorney-General. In cases of extreme urgency, telephone requests may be made. In some cases, the Official Solicitor himself will be appointed as advocate to the court. He may be given directions by the court authorising him to obtain documents, conduct investigations and enquiries and to advise the court. He may appear by counsel or an in-house advocate.

THE ATTORNEY-GENERAL
LORD GOLDSMITH QC

THE LORD CHIEF JUSTICE
THE RIGHT HON THE LORD WOOLF
19 December 2001

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