A judge has stressed the importance of having lawyers in family court proceedings to prevent emotional self-represented litigants behaving in ways they might regret.
Publishing details of a reserved judgment in relation to a case concerning a care order, Her Honour Judge Hammerton (pictured) said the absence of legal aid funding had ’undoubtedly’ placed the father at a disadvantage.
The lack of legal representation, she added, had inevitably caused an imbalance in the effective presentation of the cases advanced by the parties.
The father was seeking to discharge a care order over his 12-year-old son, but had been denied public funding by the Legal Aid Agency.
Hammerton emphasised the role played by lawyers in ensuring litigants are able to present their case clearly.
‘When, as here, the subject matter is grave and emotive, the absence of representation is particularly inappropriate and unfair,’ she said.
‘The advantage of legal representation is not confined to the presentation of the case. In family proceedings, there is an additional advantage that the advocate can protect the client from himself. Timely advice will prevent the party from behaving in a way that he might regret.’
The final hearing in JC (Discharge of Care Order: Legal Aid), Re  EWFC B39 was listed for three days to accommodate the fact that the father might be unrepresented as the judge noted that every hearing before her had taken longer than was necessary.
However, the matter was concluded within half a day, Hammerton said, due to the father being represented by a lawyer, Maureen Obi-Ezekpazu, acting pro bono.
Hammerton, sitting at Medway Family Court, Tunbridge Wells, said it was ‘gratifying that there continue to be members of the bar who are prepared to give up their time to assist those who would otherwise be unrepresented. Their contribution is invaluable; indeed without their assistance, the court faces an almost impossible task’.
Legal aid reforms introduced by the coalition government in April 2013 removed most family law cases from the scope of civil legal aid.
An application to discharge the care order had made been made initially by the local authority and granted in May 2014.
In the midst of proceedings, the local authority changed its position and sought permission to withdraw its application. Since September 2014, the application for the discharge of the care order was made by the father and by the child, who was separately represented.
The care order was discharged in March 2015 after the application was subsequently supported by the local authority and the guardian.
The judgment stated the father had been refused public funding by the LAA because the proceedings were for a discharge of a care order. As a result the father was not entitled to non-means and non-merits tested funding, and his financial position placed him outside legal aid eligibility.
Hammerton said it was impossible to rationalise the distinction between defending an application for a care order and defending an application for the withdrawal of permission to discharge a care order, when both applications were made by the local authority.
‘The outcome being sought by the local authority is the same, namely the removal of the child from his parent. However the application made within original care proceedings will attract non-means tests public funding whereas the application to withdraw a discharge of a care order will not.’