This month a mother who is trying to get her five-year-old daughter back from local authority care successfully challenged a placement order. However, she was not successful in persuading the Court of Appeal to make an order for the local authority to cover her appeal costs, which were approaching £20,000.
'How can this be fair?', one solicitor asked in response to our article yesterday. He's right, it's not fair. The mother won her appeal yet she has to shoulder the costs, which will continue to escalate after the court remitted the matter to be reheard. However, Lady Justice King is also right to stress that legal aid funding deficiencies should not have to be made up out of local authority funds.
The appeal court's judgment doesn't go into details about why the mother was ineligible for legal aid. However, it does state that the mother and her husband own a house and have savings which could completely pay off their mortgage, which suggests their means were enough to exclude them from qualifying.
Debate about access to justice and legal aid often centres around an imbalance between the rich and the poor. But what about, to use a soundbite prime minister Theresa May came up with last year, the 'just about managing' families (or 'JAMs' as they came to be known)? Most of us would struggle if a £20,000 bill landed on our doorstep.
The Ministry of Justice recently said it is focusing legal aid resources on those who most need help. Financial means is one way to determine who to help, but as this case shows, eligibility rules need to be flexible. The government is currently reviewing its controversial legal aid reforms - so let's throw some ideas in the air at this opportune time while ministers may be listening.
One suggestion off the top of my head: retrospective funding for people who successfully challenge a care order.