Last month the President of the Family Division said the state had "washed its hands" over a lack of legal aid for parents with learning disabilities who faced the removal of their child. Allan Norman analyses the ruling.
"If you read one judgment this year, read this by Munby on legal aid:… As scathing a judgment as you will ever read."
…wrote @JackofKent [the lawyer and legal commentator David Allen Green] on Friday. I have read more than one judgment this year, but agree with the “must-read” label. This case ticks so many of my boxes in addition to what it says about legal aid. It’s also about:
- social work and the law;
- the human right to a fair trial;
- principles of natural justice;
- non-consensual adoption;
- CRPD rights of parents with learning disabilities;
- the Rule of Law and the Separation of Powers.
So I felt I really ought to try some commentary, especially when one tweeter asked,
"I don’t understand – legal aid automatic in public law – isn’t it ? @CelticKnotTweet any thoughts?" http://www.theguardian.com/law/2014/oct/31/government-washing-hands-legal-aid-chris-grayling
Legal Aid and Access to Justice
When I first did legal aid work in 1992, there was almost no restriction on the scope of legal aid, which was generally available for assistance in a matter of “English law”. There was both a means test and a merits test for general civil legal aid (that is, to get help from the State with the cost of funding legal representation).
Being poor enough meant assessing your income, and many people qualified subject to a contribution – that is, they didn’t have to pay the actual cost of their lawyer, they had to pay over part of their income every month while the case continued. The merits test could be boiled down to a financial formula in some cases, but certain types of legal problem – such as those which involved a loss of liberty – were considered important enough to get representation: the State didn’t say, “you’re almost certain to lose your liberty, so you don’t get representation”, it said, “you’re almost certain to lose your liberty, so you do”.
While there have been countless changes to legal aid eroding this structure, there is no doubt that LASPO – the common abbreviation for the Legal Aid, Sentencing and Punishment of Offenders Act 2012 – has been the most significant. Over the years, legal aid had changed from being demand-led to being supply-led: the State specified how many people in a geographical area should have what type of legal problem, and who should advise them if they did. But LASPO changed the approach to scope dramatically. Rather than legal aid being available for any legal problem unless excluded, LASPO said, “the only types of legal problems we will fund are these”. So, for example, welfare benefits are out, debt is generally out, family problems are generally out, and so on.
While it is commonly understood that public law childcare proceedings are a protected area, where legal aid is available without a means-test, this case highlights dramatically that that view is oversimplistic. In fact such legal aid is available only for specific applications under the Children Act.
What happened in this case was that the local authority brought care proceedings. In those proceedings, the local authority had to prove that the threshold for a care order was met: the child was suffering or likely to suffer significant harm. But the care plan involved the child living with the parents, who had learning disabilities. So the parents had legal aid at the point that the local authority proved the threshold was crossed, and kept their child.
The local authority social workers, now in possession of a care order, later changed their plan to non-consensual adoption. When the parents opposed this, the resulting hearing was not one of those for which non means tested legal aid was available: it was out of scope under LASPO.
There was a further possibility of legal aid: could they jump through the hoops of a means test and a merits test in the old way? In this case, the father failed the means test. With a disposable monthly income of £767.64, he was too wealthy (paragraph 18 of the judgment). Although the case doesn’t directly review the merit test, the question of whether the permanent removal of one’s child – like the removal of one’s liberty – ought to warrant representation, is one that pervades the case.
Munby powerfully points out the anomaly explained above, whereby legal representation may be unavailable at the point that you lose your child, which he describes as:
"a decidedly curious consequence of the scheme … Some might suggest that it is irrational. No doubt it is some imperfection on my part, but I confess that I struggle to understand the policy or rationale underlying this part of the scheme." (paragraph 25)
If I may be so bold, it is possible to detect the policy and rationale, it’s just that it’s nasty, pernicious, and probably unlawful. The rationale seems to be, that it is only at the point when you are accused of being responsible for the significant harm (or likelihood of it) that warrants state intervention that you should be able to defend yourself. You should not have endless state funding to challenge the consequences thereafter.
In the present case, the local authority has proven the threshold, obtained parental responsibility under a care order, and obtained an expert social work opinion that favours non-consensual adoption. Can’t it just be allowed to get on with it?
Nasty and pernicious (a) the consequences
To give legal aid at the care order hearing but not at the point of removal of the child is a bit like giving legal aid for a criminal trial, but saying that if found guilty legal aid will be unavailable to plead mitigation and make representations about sentence.
Indeed, the sentence is severe:
“it must never be forgotten that, with the state’s abandonment of the rights to impose capital sentences, orders of the kind which judges of this division of typically invited to make in public law proceedings are amongst the most drastic that any judge in jurisdiction is ever empowered to make. It is a terrible thing to say to any parent – particularly, perhaps, to a mother – that he or she is to lose their child forever.” (Re L (Care: Assessment: Fair Trial)  EWHC 1379 (Fam))
This idea, comparing such proceedings to those in which the death penalty was once available, makes sense. Earlier I made an analogy of loss of liberty, something so serious that it is generally felt that one ought to have legal representation to argue about it. But loss of liberty is rarely permanent and irreversible, adoption orders often are. It feels like the consequences, irrespective of the prospects, warrant representation.
Nasty and pernicious (b) blameworthiness
Often, but not always, a finding of significant harm represents a stain on the character of parents. Where the finding is based on physical or sexual abuse, for example, there may be a parallel finding that criminalises a parent. In an earlier case, Q v Q  EWFC 7 (21 May 2014), Munby had expressed concern about lack of legal aid where permanent loss of contact was threatened, but that case had concerned a father where:
“The father is a convicted sex offender, having convictions for sexual offences with young male children…” (paragraph 2)
To put it mildly, having been convicted of such offences after a fair criminal trial, it would be hard for many to conjure up huge amounts of sympathy for him merely because an ancillary consequence of his crimes was going to be loss of contact with his son.
There are those who argue that child protection ought to be confined to cases involving criminal conduct. I am not one of them. Children may well need protecting in a range of circumstances in which a crime cannot be proven. Sometimes, parents may well not even be blameworthy.
We don’t know enough about the facts of this case, but it is plainly the case that where parents have learning disabilities, they may have difficulties bringing up their child. There is every possibility that those difficulties in no way mark them out as blameworthy, but do require intervention. Such cases raise in stark form the question whether what is really needed is intensive family support to keep the family together, rather than removal of the child. In the present case, given that keeping the family together was the original plan, one cannot help wondering whether the change of heart was prompted by something that provided an indication of exactly how intensive – and costly – family support was going to be.
If there is a possibility that this is all about money and not about blameworthiness, it really does begin to feel nasty to leave them unrepresented.
Nasty and pernicious (c) who started it?
In a legal dispute there are at least two parties, and one of them starts the proceedings. The other gets drawn in, frequently unwilling. There has generally been a recognition that it is particularly pernicious for the party who has no choice about being drawn into the proceedings to be on a significantly unequal footing. It is why lawyers campaigning about changes to criminal legal aid have been at pains to try to get the public to understand there is a point of principle you would really appreciate if you were unexpectedly accused; and that backtracking on the principle makes miscarriages of justice easier and more probable.
So, too, here, Munby was at pains to point out that it was the State that started it:
"Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that the State is not in breach of the State’s – the United Kingdom’s – obligations…" (paragraph 31)
Human rights and administrative law
"In these circumstances it is unthinkable that the parents should have to face the local authority’s application without proper representation. To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice…" (paragraph 31)
…says Munby. It is worth remembering that Article 6 is one of the few absolute human rights that we have – one that permits no exceptions – see A (A Child), Re  UKSC 60 (12 December 2012).
Then there is the Convention on the Rights of Persons with Disabilities, to which Munby makes reference at paragraph 29. This is a human rights convention to which the UK has signed up. It is not, of course, one given direct effect by the Human Rights Act. Article 12 includes a requirement that:
"2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity."
I leave aside for the moment questions which have been asked about whether existing law complies with this obligation. I observe the role of the Official Solicitor is one of the provisions of the existing law to represent the interests of those who lack capacity. So, as an alternative to legal aid, would the Official Solicitor ensure adequate representation? The judgment explains that the Official Solicitor’s:
"practice is to agree to act only if there is funding for the protected party’s litigation costs, because his own budget – the monies voted to him by Parliament – is not sufficient to enable him to fund the costs of litigation…" (paragraph 20)
It is in those circumstances that the solicitor who the father actually approached ended up giving personal security for costs, as well as acting unpaid and paying their own expenses. If you had been wondering how it is that a case that is all about the inability of a father to obtain representation seems to be being competently argued by his lawyers, here is the answer!
Judges, particularly in the Supreme Court, have taken to future-proofing their judgments by explaining they could have arrived at the same conclusion without the Human Rights Act. Munby nods at general principles of justice, but might here have referenced some legal principles of weighty pedigree.
First, to hear both sides fairly, to know, understand and be able to respond to the case against you, is generally held to be an aspect of principles of natural justice that derive from Roman law (yes, going back to the Roman Empire era: Kanda v The Government of the Federation of Malaya (The Federation of Malaya)  UKPC 2 (02 April 1962).
Second, the principle of equality of arms takes its name from a mediaeval era when disputes were settled by trial by battle, and since battle was to the death, it was considered that justice required the parties’ champions to be fairly matched as they faced the ordeal. These are principles that could have been derived from administrative law principles with or without Article 6.
Taken together, we begin to develop a powerful argument that the injustice in the present case is not the result of a law “popularly regarded as a foreign imposition, beneficial only to foreigners and criminals" but is equally a fundamental injustice to ordinary but disadvantaged people under our own constitutional settlement.
The Separation of Powers and the Rule of Law
This brings me to the point where it is possible to see this case as potentially being of constitutional significance. One tweeter commented:
@CrimeLineLaw: Almost certainly the most depressing Judgment you will ever read. The justice system is at war with the governmenthttp://www.judiciary.gov.uk/wp-content/uploads/2014/10/re-child-d.pdf
The idea of the justice system at war with the government is certainly dramatic. And, of course, it might be no more true than to say that the government is at war with the justice system! The more usual image that I use, drawing on Montesquieu’s Separation of Powers, is that each provides checks and balances on the other.
Within such a system of checks and balances under the Rule of Law, the extent and limits of judicial power matter. But the direction of recent and proposed government policy has put a real strain on what had been accepted wisdom, that Parliament is sovereign and the role of judges is to interpret and apply. @JackofKent (again) summarises it thus:
@JackofKent: Three things can practically check state abuse of power: judicial review, legal aid, human rights law.
Each is being attacked by Coalition.
Thus, there is a developing body of writing questioning the idea that the sovereignty of Parliament limits the power of the judiciary to protect its own constitutional role. Maybe, at a time when the legislature and the executive were not simultaneously attacking everything that can keep abuse of state power in check, the judiciary could afford to be more timid. Maybe now that they are, it cannot afford to be.
That the Ministry of Justice’s legal aid reforms have been subject to a series of successful judicial reviews (see here and here) is no coincidence. That a further JR was threatened in this very case (see paragraph 22) is also no coincidence. It does seem to me that this is a test case that might even carry public sympathy and understanding with it, on the need for these checks on state power.
Let us hope so, for all our sakes.