Top Family Judge Tackles Consequences of Legal Aid Cuts

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In a decision which vividly revealed increasing judicial concern in respect of the impact of swingeing legal aid cuts on the administration of justice, the country’s top family judge has questioned the withdrawal of public funding from a sex offender who was battling for contact with his seven year-old son.

The father was unable to pay either for legal representation or an expert witness and the President of the Family Division, Sir James Munby, expressed the view that, in the absence of state funding, it would prove impossible to deal with the case justly and fairly or in accordance with human rights legislation.

The father had a record of convictions for sexual offences against young males, one of which was committed during the currency of the contact proceedings. Experts were unanimous in their views that the boy would not be safe in his father’s presence and that both direct and indirect contact should be refused.

In those circumstances, the father’s legal aid had been withdrawn and the mother’s legal team had applied for summary dismissal of his contact application, which was said to be ‘totally without merit’. However, the judge noted that the father spoke little or no English and would face ‘obvious forensic difficulties’ in representing himself.

Noting that the expert evidence, although ‘clear and compelling’ on the face of it, was capable of being challenged, the judge said that, in the absence of funding for the father’s case, he had been ‘left with the strong feeling’ that he could not deal with the case fairly and justly and on an equal footing as between the parties.

Noting that the father was entitled to a fair hearing and to respect for his family life under Articles 6 and 8 of the European Convention on Human Rights respectively, the judge noted, “The issue which arises in the present case, and which is arising in other cases as I speak, is one which raises important points of principle.”

On the assumption that legal aid would not be forthcoming, the judge said, “There may be a need in this kind of situation to explore whether there is some other pocket to which the Court can have resort to avoid the problem, if it is necessary in the particular case.” It was arguable that, in such circumstances, the Court, as a public authority, would itself have to assume the financial burden.

The judge adjourned the father’s application and directed that the Secretary of State for Justice or the Minister for the Courts and Legal Aid be invited to intervene in the proceedings. The Court would hear submissions in respect of how state funding could be arranged in cases where legal aid had been refused but, in the court’s opinion, public expenditure was necessary to ensure a just outcome.