In Focus – Changes To Child Maintenance

A mother’s human rights were breached by the denial of Legal Aid says senior Judge

justiceThe cuts in Legal Aid inevitably mean that human rights are being broken in the family courts according to a senior Judge.

A partially sighted, hearing impaired, illiterate mother with learning difficulties, who cannot be named for legal reasons, had her European Convention on Human Rights Article 6 right to a fair trial and her Article 8 right to family life breached when she was forced to represent herself in a court battle with her husband for a residence order for their four children, according to Circuit Judge Louise Hallam in her judgment in the case Re H [2014] EWFC B127.

The mother’s Legal Aid application was turned down on the grounds that its refusal would not preclude the mother from having effective access to the courts.

Circuit Judge Louise Hallam said: “I accept that not having Legal Aid would not prevent this mother from having physical access to a court but in her situation, in my judgment, she has undoubtedly been prevented from having intellectual access to this court.”

The Judge said she was astounded at the claim from David Keegan, head of the High Cost and Complex Cases section at the Legal Aid Agency, that the mother’s Article 6 rights had been preserved: “when I pause to consider the Article 6 first of all, which is to ensure that people have fair trials in the courts of this country, and in order to do so she should have equality of arms, I cannot see how anyone can come to the conclusion that this mother’s Article 6 rights were not in jeopardy.”

The Judge pointed out that the father had been granted Legal Aid and that the local authority was also supporting the father. This meant the mother faced two advocates on her own – “on any basis that cannot be equality of arms,” the Judge said.
The Judge also said that the mother was more vulnerable than the father. “This matter is clearly about family life and the mother’s right to family life, whether the children should be in her care or what contact she should have. Again, I cannot see any conclusion other than that her Article 8 rights were engaged.”

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