The government has seen many challenges to the way that legal aid is administered in the past year. From the successful challenge to the proposed residence test, to the guidance around exceptional case funding and the unsuccessful challenge to the evidence requirements for domestic violence victims, the end result appears to be that fewer people will be granted the required public funding to get professional legal advice to understand the law and have their case properly put before the court without fear and humiliation. The government cites austerity cuts to justify its potential breaches of the right for every person to a fair trial under Article 6 of the European Convention on Human Rights and is becoming increasingly inflexible when applying its rules.
The reality: Re D
The situation becomes starker when considering the reality with childcare proceedings. This was demonstrated in the case of Re D, which has produced four separate judgments from the High Court to the President of the Family Division ( EWFC 6,  EWFC B77,  EWFC 39, and  EWFC 2). Each judgment despairs at the predicament of the mother and father, who were left without funded legal advice and representation to respond to the local authority’s action of removing their child into foster care and ultimately requesting that the child is placed for adoption. (See Legal update, High Court guidance on removal of child living at home under a care order.)
The child had been the subject of previous care proceedings and became the subject of a final Care Order, but was placed back into the parents’ care. In most local authorities, this is a rare and unacceptable care plan because the local authority remains responsible for the child’s care in a placement that is not within the local authority’s control and there may be a significant risk of harm to the child. The mother in this case suffered from a mild borderline learning disability and the father’s cognitive functioning was lower, to the point that he lacked the capacity to litigate and required a litigation friend. He was receiving support from his local adult social services team and had an appointee to deal with his finances. The care that they could provide was assessed as being borderline “good enough” and required substantial support. Both parents were vulnerable persons and plainly unable to bring any claim or respond to any application that the local authority would eventually make.
Peculiar legal aid rules
With care proceedings, parents are automatically entitled to legal aid without any means or merits testing. This is because care proceedings usually have, at least, the threat of a child being permanently removed from their parents’ care. The severe nature of the application requires that parents are given the chance to put their case with legal advice and representation.
However the same reasoning does not apply when faced with the situation that the parents in Re D faced. The local authority’s intention was the same as with care proceedings: that the child should be removed permanently from his parents’ care. However, the rules do not provide for automatic public funding to challenge the local authority’s decision to remove a child by way of an application to discharge the care order or an application for an injunction. Equally when a local authority makes an application for a placement order to obtain authorisation to place the child for adoption outside of care proceedings, the parents cannot get automatic public funding to respond and object to the application.
Legal aid is only available for these types of applications on a means and merits basis. In the case of Re D, this posed a substantial bar because the father had limited wages from a job that took him £34.64 over the upper limit at which legal aid becomes available (£733.00 of disposable income per month). This household income also prevented the mother being granted legal aid. Exceptional case funding would not be available in this case because the circumstances of a child being removed from learning disabled parents who have provided deteriorating standards of care is not exceptional in care proceedings.
The parents were very lucky to have legal teams work pro bono on their behalf to get their case and circumstances heard.
Forcing the Legal Aid Agency
The Legal Aid Agency (LAA) is known for its irreverent attitude to judges. In the past they have ignored orders to attend court when asked to justify their refusal to fund assessments, despite the court making a decision that some part or all the costs of an assessment should be paid for under a party’s public funding certificate.
The LAA is in a particularly secure position when it comes to challenges against their decisions on legal aid. Threats of judicial review are not usually taken much further than a pre-action letter because the LAA will not usually grant a public funding certificate to challenge its own decision. Unless there is alternative funding, there is therefore no ability to challenge its decisions.
Funding decisions appear to be at the whim of the LAA, unless it is made to give in to relentless pressure. In Re D the amount of effort to exert constant pressure on the LAA can be seen from the 21-page annex detailing the calls and correspondence by solicitors doing unpaid work to fight the system. This had to be coupled with the published judgments to effectively shame the LAA into the concession of reassessing the means of the father and requiring a monthly contribution from him, which he could not afford. It is difficult to see how the LAA can maintain the stance that the rules are fair and can protect the vulnerable.
It is a shame that the President stops short in his January judgment from giving any form of guidance on how this situation should be managed in the future. In his October judgment he suggests that Her Majesty’s Courts and Tribunal Service (HMCTS) could fund legal representation, or the local authority or the child’s public funding certificate could foot the bill. HHJ Bellamy in Re K and H  EWFC 1 made the radical decision for HMCTS to fund legal representation for cross examination purposes. The result will be that other cases will suffer the unreasonable delay to the proceedings and the child will ultimately linger in foster care waiting for a final determination and possibly losing the chance for adoption.
The President’s views about the legal aid rules are clear:
“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” and “A parent facing the permanent removal of their child must be entitled to put their case to the court, however seemingly forlorn, … It is one of the oldest principles of our law – it goes back over … to the earliest years of the seventeenth century – that no-one is to be condemned unheard.”
Whether the President will take any action based on his views is unknown.
The need for reform and the unfairness of the rules is clear and agreed by all who are currently involved in care proceedings and children’s welfare. As the Association of Lawyers for Children rightly says, the circumstances of these parents are not uncommon and this is not an isolated case. At present, the vulnerable will continue to be failed.
For more information on this subject, see Practice notes, Public funding in family proceedings and Discharge and substitution of care orders.