Judge may order council to pay costs of parents in adoption case if no legal aid

The President of the Family Division is to consider whether to require a local authority, the legal aid fund or the Courts and Tribunal Service to meet the costs of parents with learning disabilities who do not have legal aid for adoption proceedings concerning their son.

The case of D (A Child) relates to whether the boy, D, should live with the parents or, if they cannot adequately look after him, with other members of his family, or should he (as Swindon Council argues) be adopted outside the family.

Decisions about what should happen were not the issue before Sir James Munby at a hearing on 8 October, however. “What I have to grapple with is the profoundly disturbing fact that the parents do not qualify for legal aid but lack the financial resources to pay for legal representation in circumstances where, to speak plainly, it is unthinkable that they should have to face the local authority's application without proper representation,” the President said.

The parents had received legal aid in earlier proceedings that saw a care order made in November 2012 on the basis of the local authority’s care plan. However, when Swindon gave notice of its intention to remove D in April 2014, an application for legal aid made by the parents was unsuccessful.

In D (A Child) [2014] EWFC 39 Sir James Munby said the father and the mother were disqualified from receiving legal aid because the father's disposable monthly income in May 2014 was £34.64 too much and in June 2014 was £73.94 too much.

The President said: “The father's modest earnings disqualify him, and therefore the mother, from receiving legal aid. They cannot afford to fund private representation. They are, at present, wholly dependent on the good will of members of the legal profession who, to their enormous credit, and acting in the highest traditions of the profession, are acting pro bono, that is, for no fee and paying their travel and other expenses out of their own pockets.”

The judge praised the father’s solicitor, Rebecca Stevens of Withy King, for going “above and far beyond the call of duty”, having spent in excess of 100 hours unremunerated working to resolve the issue of the father’s entitlement to legal aid.

Stevens also offered an indemnity against adverse costs orders to the Official Solicitor, who was not willing to act as the father’s litigation friend without one.

Sir James noted that because the father was a protected party (on account of his learning disability), he and the mother (who was not a protected party but did have learning disabilities) required as a matter of law separate representation.

Meanwhile, in response to pre-action protocol judicial review letters sent to the Legal Aid Agency and the Lord Chancellor, challenging the refusal of legal aid and attacking the lawfulness of aspects of the funding scheme, the Treasury Solicitor had given notice that any claims would be resisted.

“The progress of these claims is stymied,” Sir James said. “The parents are financially ineligible for legal aid to pursue a claim for judicial review, and those who might otherwise be willing to act pro bono for them in judicial review proceedings are unwilling to run the risks of adverse costs orders.”

Describing the parents' predicament as “stark, indeed shocking”, Sir James said:

• The parents were facing, and facing because of a decision taken by an agent of the State, the local authority, the permanent loss of their child. “What can be worse for a parent?
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• The parents, because of their own problems, were quite unable to represent themselves: “the mother as a matter of fact, the father both as a matter of fact and as a matter of law.”
• The parents lacked the financial resources to pay for legal representation.

• In these circumstances it was “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.
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• If his parents were not properly represented, D would also be prejudiced. He was entitled to a fair trial; he would not have a fair trial if his parents did not, for any distortion of the process might distort the outcome. Moreover, he was entitled to an appropriately speedy trial. So delay in arranging for the parents' representation was likely to prejudice the child. “Putting the point more generally, the court in a case such as this is faced with an inescapable, and in truth insoluble, tension between having to do justice to both the parents and the child, when at best it can do justice only to one and not the other and, at worst, and more probably, end up doing justice to neither.”

The President said that the State had “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, the judge said. “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 under the Convention?”

Counsel for the local authority pointed out in her submissions to the President that the parents had been entitled to non-means, non-merits, tested legal aid when facing the proceedings under section 31 of the Children Act 1989, at a time when removal of their child was not the plan. Yet when they were now facing an application for the permanent removal of their child and his adoption they were denied legal aid.

“That, to use no stronger expression, is a decidedly curious consequence of the scheme embodied in Regulation 5 of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013," the judge said.

He added: “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.”

The Family President said that if legal aid was not available then he would need to explore whether there was some other “public pocket” to which the court could have resort to avoid the problem.

Sir James therefore directed that there be a further hearing at which, assuming the parents still did not have legal aid, he would make the decision on who should meet their legal costs.

The judge said that at the next hearing he would decide “whether or not their [the parents’] costs are to be funded by one, or some, or all of (listing them in no particular order) the local authority, as the public authority bringing the proceedings, the legal aid fund, on the basis that D's own interests require an end to the delay and a process which is just and Convention compliant, or Her Majesty's Courts and Tribunals Service, on the basis that the court is a public authority required to act in a Convention compliant manner.”

Copies of the judgment were to be sent to the Lord Chancellor, the Legal Aid Agency, HMCTS and the Association of Directors of Children’s Services, inviting their interventions in the case.

In a postscript Sir James revealed that the Legal Aid Agency had reassessed the father’s means and had granted an emergency certificate, limited at this stage to hearings in May and July 2014 and subject to a contribution of £133.77 from capital and £96.38 each month from income. This offer had been accepted.

The issue of legal aid in relation to the proceedings with which Sir James was concerned had not yet been resolved. The President said it needed to be before the next hearing, which was listed before him on 13 November.