The bare facts in two of these three cases (Re B and Re C) are
strikingly similar, but they are no doubt not unique. There will be other cases
with different facts but involving equally grave allegations and complex
issues, and which require a forensic approach and an understanding of the
potentially significant legal consequences of the court’s determination of such
allegations within family proceedings – significant both for a parent found
responsible of gravely abusive and potentially criminal conduct or for a parent
found to have fabricated such allegations. In either instance there is
potential for far reaching ramifications – perhaps an effective termination of
a direct relationship with a child or a change of residence – and beyond the
specific dispute about this child,
child protection concerns may impact on the care of other children by that
adult, or criminal proceedings may follow.
the scrutiny by Parliament of the provisions of LASPO 2012 (including s 10 –
exceptional funding) there are private law cases of real difficulty and
complexity that require legal expertise to navigate fairly and effectively. In
the writers' view whilst such cases are not typical, neither are they
exceptional. And as highlighted in Re W (Residence Order: Appeal)  EWCA Civ 1065,  2 FLR (forthcoming) there are concerns in some quarters
that care proceedings 'by the back door' may be becoming more prevalent in
places. Surely such cases (along with any true private law cases that involve
potential severing of a parent child relationship) are as meritorious of legal
representation as the care cases in respect of which parents benefit from
non-means non-merits tested public funding. It is after all plain that the
rigorous 'last resort' approach set out in Re B is applicable to such cases, and
that the duty of the court as public authority to ensure that Arts 6 and 8
are respected is engaged.
Because of course whilst the scope of legal aid has been intentionally
narrowed by Parliament, the court remains under as much of a duty as ever to afford
a fair trial to litigants. In addition Parliament legislated for the creation
of the Family Court on 22 April 2014. One of the amendments to the Matrimonial
and Family Proceedings Act 1984 that formed the raft of provisions creating the
Family Court was the inclusion of a new s 31G. That provision specifically
creates a duty upon the court to 'put or cause to be put' questions where a
witness is unable to do so. It must be taken to have been Parliament’s specific
intention to create this new and very specific obligation.
In the first judgment in Q v Q (Q v Q  EWFC 7), in the course of grappling with a similar difficulty with
how to achieve a fair trial in the absence of public funding for a father who
was facing the potential termination of his relationship with a child,
the President had mooted various scenarios that might enable the case to fairly
proceed. One of the scenarios was the 'Some other pocket [of the state] must
pay' scenario. Neither the Minister nor the LAA took up the invitation to
engage in that discussion and so in the conjoined judgment in Q v Q the
President was left to answer his own questions without their input. Ultimately
he concluded, whatever arrangements had been made for the provision of legal
aid, the court remained under a duty to afford a fair trial, and (to adopt the
language of Re B) as an option of last
resort there may some cases where the court itself would have to pay.
It remains to be seen if
this ever comes to pass, and if it does how often recourse will be needed to
the 'HMCTS emergency representation fund' (or whatever it may be called). It
remains to be seen how such a scheme would operate, although it seems likely
that the civil servants at HMCTS would require it to be set up so as to be
properly auditable just as with the LAA. It may be that the father in Re C
secures public funding and the issue falls away in this case (his application
was pending when judgment was handed down) – but there are likely to be other
cases in which there are similar difficulties and where the question of HMCTS
providing financial assistance might be raised. Much depends upon the progress
and outcome of the various judicial reviews and appeals relating to s 10 LASPO
2012 'exceptional funding' that are in progress or pending (for example Gudanaviciene & Ors v Director of Legal Aid Casework & Anor  EWHC 1840 (Admin) is
on appeal) – if exceptional funding begins to be granted more readily, perhaps
as a result of the Lord Chancellor’s Guidance on s 10 being revised, the court
coffers may not be called upon.
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It appears though that the sorts of cases where this issue may arise for determination are these:
Cases where there is a prospect of a decision that will effectively
terminate the relationship between a parent and child ('no contact' cases), and
/ or where there are grave allegations that would raise the prospect of future
criminal proceedings if proven (or for the person making the allegation if
found to be false?), and possibly where the court is determining whether to
remove / return a child from / to the care of its’ parents (so-called 'back
door care' cases).
Where the case does not qualify for exceptional funding (for example
where the parent falls foul of the means test but is nonetheless too
impecunious to fund representation) or where exceptional funding has been
applied for and refused (but will a parent have to apply repeatedly, pursue JR
Where other avenues have been tried and failed (Bar Pro Bono Unit etc).
The judgment in Q v Q represents the court’s attempt to find ways to
comply with the statutory obligations imposed upon it by Parliament using such
resources as are available to it. Sadly, the 'solution' of 'court must pay' is
only partial, and less than ideal. It will leave parties and children expending
a great deal of emotional energy and time on working through and exhausting all
options in a protracted preliminary process – before the court can get on with
the substance of an application and make decisions for children.
Private law proceedings are stressful for all involved, more so when
grave allegations are made. In each such case there is a victim – either a
victim of abuse or violence or a victim of a false or exaggerated allegation.
Whatever the truth in the particular case the delay and uncertainty caused by
the lack of representation of one party is not only stressful and traumatic,
but it is wasteful of public resources through unnecessary hearings (including
ironically additional legal aid costs where the alleged victim is represented) and
is forensically deleterious because evidence becomes stale, memory fades and
vulnerable witnesses become exhausted by the process. A child is left in limbo.
In Re B and Re C proceedings have been running for many months, the parents
have been to court on many occasions and subjected to no doubt distressing
uncertainty - but to date the court has not been able to begin dealing with the
substance of their cases. As yet there is no solution in place that will
prevent other families going through similar delay before their cases can be
said to qualify for funding under Q v Q and are subsequently ready to proceed.
represented the father in Re B, and Lucy Reed represented the mothers in both
Re B and Re C. Both are members of the family team at St John’s Chambers in
Lucy has been shortlisted for the 2014 Family Law Awards - Commentator of the Year. Voting for this award is open to the Family Law community, to place your vote for the award click here.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.