Q v Q [2014] EWFC 7 : President Munby J adjourns private law proceedings due to Father having no access to public funds

16 Jun

Most, if not all of us, predicted the frustrating consequences that would follow from the restrictions on Legal Aid imposed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.  An increased number of self-represented litigants have descended upon the family courts due to no longer qualifying for Legal Aid yet not having the funds to pay for legal representation themselves resulting in delays as many try to grapple with a system they know little about against professionals.  We have no doubt all experienced difficulty in moving matters forward in cases whereby one party is not represented through lack of legal aid and personal funds, and the frustration of Judges facing such cases.  It will therefore come to many as no surprise that in a recent Judgment, the President himself has aired his frustrations cumulating in an adjournment of proceedings.

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Most, if not all of us, predicted the frustrating consequences that would follow from the restrictions on Legal Aid imposed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.  An increased number of self-represented litigants have descended upon the family courts due to no longer qualifying for Legal Aid yet not having the funds to pay for legal representation themselves resulting in delays as many try to grapple with a system they know little about against professionals.  We have no doubt all experienced difficulty in moving matters forward in cases whereby one party is not represented through lack of legal aid and personal funds, and the frustration of Judges facing such cases.  It will therefore come to many as no surprise that in a recent Judgment, the President himself has aired his frustrations cumulating in an adjournment of proceedings.

The case of Q v Q [2014] EWFC 7 involved a Father who was a convicted sex offender and had applied for contact with his young son.  His convictions included sexual offences with young male children as victims and one such offence had been committed during the course of the proceedings.  The Mother applied for a section 91(14) order and asserted that the Father's application was totally without merit therefore should be dismissed.  The two risk assessments were unequivocal in their recommendation that there should be no indirect or direct contact unless certain identified work was successfully undertaken by the Father, it having been concluded by the experts that the child would not be safe in his Father's presence.  Due to such conclusions the Father's Legal Aid was terminated.  This meant that there was no available fund to cover the costs of one of the experts, that of the Father, attending Court and no funds available to the Father to fund his share of the other expert attending Court.  Furthermore he was left to act as a self-represented litigant and required an interpreter due to his poor English.

Upon considering the matter, Munby J noted that on the face of it the reports were clear and compelling however also that a significant part of the analysis in the reports depended upon the accounts given to each expert by one party or the other.  There were matters in the reports which could properly be challenged by someone representing the Father.  Munby J gave examples of cross-examination which could take place and which he felt would be proper and appropriate [see paragraph 10] considering it a matter of speculation as to what the answer would be to such questions.  He could not have that degree of assurance that there is nothing to be said which he would have to have, bearing in mind the extreme nature of the orders sought, if he were to proceed summarily as Mother suggested.  Munby J also considered FPR 2010 1.1 and that the Court is required to deal with the matter "justly" and by ensuring "so far as is practicable" that the case is dealt with "fairly" and also "that the parties are on an equal footing."  He was clear that he was “ left with the strong feeling that I cannot deal with the matter today justly and fairly by acceding to her submission”.

At paragraph 13 of the Judgment Munby J notes the impasse reached and goes on to consider the issue raised in this case which is arising in other cases; the lack of public funding or other funds due to low income and the domestic obligation on the Court to act justly and fairly and, to the extent that it is practicable, ensure that the parties are on an equal footing.  He considered Article 6 and the potential for a self-represented litigant to be denied their Article 6 right to be able to present their case properly and satisfactorily.  He does not, though, express any view as to whether, in the circumstances, unless there is some resolution of the present financial impasse, there would be a breach of either Article 6 or Article 8.  He then considers, at paragraph 18, the need in situations such as this to explore whether there is some other pocket to which the court can have resort to avoid the problem.  He notes that it is arguable that the costs of the proceedings should be thrown on the party which is in receipt of public funds or that the Court must itself assume the financial burden.  He does not in fact consider or decide such matters but states that they required to be investigated, there being a risk that if the process is not fair to one of the parents, that unfairness may in the final analysis rebound to the disadvantage of the child.

In light of the circumstances Munby J adjourned the mater for a short time and invited “the Ministry of Justice - or it may be the Secretary of State for Justice or it might be the Minister for the Courts and Legal Aid - to intervene in the proceedings to make such submissions as are appropriate in relation, in particular, to the argument that in a situation such as this the expenditure which is not available from the Legal Aid Agency but which, in the view of the court, if it be the view of the court, is necessary to be incurred to ensure proceedings which are just and fair, can be met either from the Legal Aid Agency by route of the other certificate, the mother's certificate, or directly at the expense of the court” [paragraph 20].

It remains to be seen what the upshot of this case will be but it is certainly one to watch.  The full Judgment is available at http://www.bailii.org/ew/cases/EWFC/HCJ/2014/7.html so have a read and let us know your thoughts.

Leanne Buckley-Thomson

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