The most senior family judge in England and Wales has adjourned a child contact case because a father who is seeking contact with his child is no longer eligible for legal aid.
In his comments Sir James Munby questioned whether the restrictions placed on eligibility for legal aid by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 could result in unfair hearings for parents and children.
In the case, referred to as Q v Q, particular difficulties have arisen because the father is a convicted sex offender who does not speak English. Munby explained that in cases such as this it is particularly important that the parents on each side are represented fairly and equally. In his opinion expert witnesses would need to be called to assess the father’s suitability for contact with the child. The father would also need access to an interpreter throughout the hearing.
However, legal aid was withdrawn from the father, meaning that expert witnesses and interpreters could not be provided for him. In Munby’s opinion the withdrawal of legal aid from the father meant that the hearing could not be conducted fairly, stressing that conducting the hearing fairly was important for all parties involved, including the child. As a result, Munby adjourned the case so that the Ministry of Justice could consider what to do, in effect challenging the Ministry of Justice’s policy of removing public funding for most matrimonial and separation hearings.
The recent cuts to legal aid have resulted in the family courts being inundated by unrepresented claimants because legal aid is no longer available for their claims. The criminal courts are also suffering. Recently, a serious fraud case collapsed owing to cuts in legal aid only to be reinstated after consideration by the court of appeal.
Right to a fair hearing
Munby said in his judgement in Q v Q that precedents from the European Court of Human Rights showed “that there could be circumstances in which, without the assistance of a legally qualified representative, a litigant might be denied [their right to a fair hearing].
“The question then is what is to be done because, on one view, we have … reached an impasse, which is unthinkable. This case raises, in quite an acute form, a problem which is increasingly troubling judges sitting in the family court at all levels.”
In the case of Q v Q either the mother, who is publicly funded, or the court itself might have to pay, he suggested, “in order to ensure a just and fair hearing”.
He continued: “It seems to me that these are matters which are required to be investigated in justice not merely to the father, but I emphasise equally importantly to the son, as well as in the wider public interest of other litigants in a similar situation to that of the father here … there is the risk that, if one has a process which is not fair to one of the parents, that unfairness may in the final analysis rebound to the disadvantage of the child.”
Munby concluded: “I propose to adjourn this matter for … a short time, inviting the Ministry of Justice – or it may be the secretary of state for justice or it might be the minister for the courts and legal aid – to intervene in the proceedings.”
Their submissions, he suggested, should address who should pay if funding for legal representation for the father is necessary.
An MoJ spokesperson said: “We have only just received this judgement. However, it is clearly a complex case that requires careful thought. In his judgment, Sir James Munby references expert evidence that the child would not be safe in the father’s presence and that, given these circumstances, the father’s legal aid was terminated.”