Deputy High Court judge calls for non-means assessed legal aid for parents involved in deprivation of liberty proceedings

There is a compelling case for parents involved in deprivation of liberty proceedings to be treated the same as respondents in care proceedings when it comes to the provision of legal aid, a Deputy High Court Judge has said.

Richard Todd KC’s comments came in the case of E (A Child), Re [2022] EWHC 2650 (Fam), where the parents represented themselves after being denied legal aid because they were £36 over one of the limits.

Judge Todd said (his emphasis):

“48. Ordinarily children are best brought up by their parents (as the parents here, rightly say). If the children are to be deprived of the primary care of their parents then it must only be after a carefully conducted judicial process. In a complex case such as this, legal representation is more than just desirable, it can represent the difference between a fair hearing and an unfair one. Here, the parents are sufficiently intelligent and articulate that with some support from the Court they have been able to put their cases fully and addressed me in a way which was both respectful and very helpful.

49. I have not investigated the position with the Legal Aid Agency fully and am simply making this observation on the basis of what I have been told. The factual position appears to be this – the Local Authority (rightly) retained very senior counsel. The cost of that was a proper burden on the State's finances. I have been immensely assisted by Ms Courtney's input. The guardian, on behalf of E, had to apply for legal aid. E's finances had to be considered. The guardian has been very ably represented by Mr Knowles. Again, the cost comes from the public purse. The Local Authority and the guardian both support the continuation of the care order and the making of the DOLs order.

50. By contrast, the parents had their legal aid removed last week for being £36 over one of the limits. I understand that the Legal Aid Agency sets the limits so that (a) the gross monthly income should be less than £2,657. Then, (b) if the gross income is less than the disposable income limit is calculated. Fixed allowances are made for partners (£191.41 per month), dependants and employment expenses. Other deductions can be made for: tax; national insurance; maintenance paid; housing costs; childcare costs incurred because of remunerative work or a course of study outside of the home (where the individual receives study-related income). If the resulting disposable income is above £733 per month then legal aid is refused. Also, applicants must not have more than £8,000 of capital. Certain groups – such as those with only income support - are "passported" through to legal aid.

51. Even though DOLs proceedings often involve almost the same subject matter as care proceedings (and often, more severe consequences) the Legal Aid regime is different. Once care proceedings are issued, a respondent with parental responsibility (which would include these parents) are automatically entitled to non-means assessed legal aid.  They receive this regardless of their income. In such a serious matter as the taking of someone's children and the child's corresponding loss of a parent, this is plainly right. It is wholly inexplicable why this is not applied to DOLs proceedings.

52. Moreover, the denial of legal aid is a false economy. The evidence in this case proceeded over 4 days. This was primarily due to the parents' labouring over difficult legal constructs and asking very wordy questions. Had they been represented, then I have no doubt this case would have concluded within 2 days. That would have been a huge saving to the public purse; 2 days' paid time saved of the High Court, senior counsel, solicitor, all the officials from the Local Authority and the Guardian – every single one of whom was paid from the public purse.

53. There is a widely held suspicion that legal aid has been so cut back over the past few decades because it is "low hanging fruit". The beneficiaries of legal aid tended to be the "voiceless" ones; people, like these parents, who are conscientious, hard-working and in employment, but not that well paid. They have become the dispossessed. Dispossessed of legal representation, by virtue of being neither poor nor rich enough. Legal aid was originally one of the pillars of the welfare state. But for these people that prop is removed. The net result is that in DOLs proceedings they are at a real disadvantage against an organ of the State (the Local Authority) who are publicly funded. There is no logical reason for them (and the Guardian) to be treated differently from respondents in care proceedings. Instead, there is a compelling case for them to be treated the same – on grounds of fairness, equality of arms and the simple economic consideration that overall, it should prove cheaper for them to be represented than not.”

Judge Todd decided to dismiss the parents' application for the discharge of the care order in relation to E, who is 17 and has complex health needs. He also concluded that the Deprivation of Liberty Order best met his best interests, and extended it until E’s 18th birthday.