Court should pay for lawyers where agency refuses – Munby

Topics: Family and children,Legal aid and access to justice,Government & politics

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  • Sir James Munby

The courts service could be ordered to pay for lawyers and experts in family cases ‘as a last resort’ where the Legal Aid Agency has refused to do so, following a ruling by Sir James Munby.

The head of the Family Division was giving judgment in three unrelated cases concerning private law matters in which a father was seeking to ‘play a role’ in the life of a child living with the mother.


In each case problems arose because the mother had public funding for representation and the father did not.

The cases, Munby said, are ‘typical’ of their kind and ‘representative of many others’.

Munby highlighted the impact the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 has had on courts, citing a ‘drastic reduction’ in the number of represented litigants in private law cases and increased demand for pro bono assistance.

The problems, he said, have been ‘very considerably exacerbated’ by LASPO, although he accepted that they pre-date the act.

The effect of LASPO is that public funding is no longer available for most private law children cases, unless they can meet the test for exceptional funding, which the High Court recently ruled was too high (Gudanaviciene and Others v director of legal aid casework and another [2014] EWHC 1840 (Admin)).

Munby cited statistics from the Ministry of Justice showing that eight applications for exceptional funding in family cases were made between April and December 2013.  

He expressed no opinion on whether the scheme is working properly, but observed: ‘If the scheme is indeed working effectively, then it might be thought that the scheme is inadequate, for the proper demand is surely at a level very significantly greater than eight or nine cases a year.’

The cases involved are referred to only as Q v Q, Re B (A Child), and Re C (A child).

Q concerns a father who does not speak English with a conviction for sexual offences against children, who was unable to challenge an expert report after public funding was withdrawn. The other two cases involve allegations of rape made by mother against father, which are denied.

Munby said: ‘The absence of public funding for those too impoverished to pay for their own representation potentially creates at least three major problems: first, the denial of legal advice and of assistance in drafting documents; second, and most obvious, the denial of professional advocacy in the courtroom; third, the denial of the ability to bring to court a professional witness whose fees for attending are beyond the ability of the litigant to pay.’

He said: ‘I have concluded that there may be circumstances in which the court can properly direct that the cost of certain activities should be borne by HMCTS.

‘I emphasise that (the provision of interpreters and translators apart) this is an order of last resort. No order of this sort should be made except by or having first consulted a High Court judge or a designated family judge.’

He added: ‘The MoJ, the LAA and HMCTS may wish to consider the implications. That is a matter for them.’

A spokesman for the MoJ said the ministry is ‘considering the judgment’.

The Law Society’s head of family and social justice Mark Poulson said: ‘The judgment’s significance is as a signal to policymakers. It says that in private law Children Act proceedings where exceptional funding is not granted, and interpreters or experts deemed necessary to resolve proceedings justly are put out of the court’s reach; or Article 6 and 8 rights are put at risk because legal representation is not funded by the LAA - for example, where an alleged perpetrator is set to cross-examine an alleged victim - then the court will consider ordering costs against HMCTS, on the basis that some part of the public purse has to meet the state’s obligations.’

Paulson added: ‘This is really an exhortation to the MoJ and LAA to sort things out before matters reach that stage.’

Read the full judgment.

Readers' comments (14)

  • If things are so bad, one wonder why there were no fewer than eight advocates involved in these two cases.

    If Munby P wanted to suggest that HMCTS should pick up the tab, he should invited HMCTS to intervene in the proceedings before giving his judgment.

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  • No it shouldn't. No legal aid in civil cases. End of.

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  • So please can the Great Munby tell us in practical terms how this will actually work?

    Which Solicitor/Counsel will take on a case, unpaid and without legal aid and go all the way to the High Court on the off-chance that the Judge will order costs from central funds?

    Or will Munby just walk into the Strand and pull off any old brief hanging around El Vinos and offer them the case?

    And what will the rates of pay be, and who decides how much work was reasonable?

    Would ANY lawyer in the UK actually trust HMCTS to act 'fairly' in respect of ever getting paid for Munby's Law?

    Just shows you how desperately out of touch these senior judges are to the practical realities...

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  • The idea of a High Court judge "pulling off any old brief hanging around El Vino's" is not one which we should linger on.

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  • Anonymous at 09.26. You clearly have never been subjected to the abuse and violence of a partner and needed the Court's protection, a party in a case where a child is being neglected and accusations are flying around as to who the perpetrator may be, a father/mother who desperately wants contact with their child where the other parent is hostile - I could go on. It is only those who do not work in this area of law at the coalface who truly understand the value of this work in terms of saving money later on - and its not as if us family lawyers actually get paid very much for the work anyway, pay cuts and having to argue for every last penny whilst trying to keep staff in employment. You should maybe spend a day with a family lawyer working in domestic abuse cases or care proceedings and see if you feel the same after, particularly if you have the opportunity to view photographic evidence, however you may struggle to sleep for a few nights afterwards.

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  • I think Anonymous at 09.26 meant that Parliament has decided against legal aid being available and it is not for the court to try find a way of circumventing the obvious intention of Parliament.

    If these judges are so unhappy about the position, one or more of them should resign in protest. Suggesting that HMCTS might have to pick up the tab, without giving the government (or anyone on behalf of HMCTS) a chance to intervene and make submissions on that point, is not the correct way of trying to sort out this mess.

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  • Re:
    "Anonymous7 August 2014 09:26 am
    No it shouldn't. No legal aid in civil cases. End of."

    Good to see the MoJ contributing to this debate!

    Paul Hawkins

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  • I think Mumby gave the MoJ the opportunity to be joined so they could make their case but not surprisingly they bottled it!

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  • "Q concerns a father who does not speak English with a conviction for sexual offences against children,"

    I hope this "father" is not resident in the UK. I assume he is not British born. If he has right of residence in the UK he should be deported, not given legal aid. I know, the usual catalogue of human rights, right to family life etc. What about the rights of our children to safety and security and that of his own child? A man with his convictions should be forfeit his right to family life.

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  • Mr Ryan fails to understand that it is primarily the right of the child to a relationship with the father that the court is concerned with.

    Q v Q does not only concern what contact (including indirect) if any the child can safely have with his father, but also the mother's application for a s91 (14) direction preventing the father from making fresh applications concerning the child: a serious interference with the father's access to justice, therefore.

    It may very well be that the father in Q v Q cannot safely have contact with his own son, even in terms of indirect letterbox contact. The Court, however, needs to have the materials necessary to make a fair decision. That is what Munby is after in this case.

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