The president of the Family Division has described as ‘unconscionable’ delays over legal aid funding which have held up a case concerning the removal of a child from his parents.
Sir James Munby (pictured) today confirmed that the parents of a toddler did secure legal aid for their previous court battles with Swindon Borough Council over the future of their child.
Munby last year accused the government of having ‘washed its hands’ in denying legal aid to the parents, who have learning disabilities.
In an update published today (In the Matter of D (a child) (No 2)), it was confirmed the parents have been granted legal aid, subject to an agreed monthly contribution, up to the date of next month’s final hearing – although funding is still not assured for that hearing.
Munby said it was ‘unthinkable’ that the parents should have to face the local authority’s application for adoption of their son without proper representation.
He noted that the child had been removed from his parents on 25 April last year, yet it took until 1 December for legal aid applications to be complete. The final hearing will not take place until 9 February.
‘Whatever the administrative excuses, the human reality is that a little boy has been separated from his parents pending a final decision for far too long – and for a period which is manifestly excessive,’ said Munby.
The judge explained that the primary focus of three hearings has been funding, with the mother in particular distressed that her child had not even been mentioned during the course of some proceedings.
Munby added: ‘The parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane.’
A letter from justice minister Shailesh Vara confirmed that the child’s parents were offered funding on 8 October on the basis they pay £96.38 monthly and a one-off contribution of £133.77 from their capital.
He acknowledged that in this case the parents have faced ‘considerable uncertainty for some time’ but that legal aid cannot be made available until information has been provided that shows statutory tests have been met.
Vara added: ‘The [Legal Aid Agency] will act promptly is assessing applications but is reliant on the accuracy and currency of the information received from clients and their legal aid providers.’
Munby said the complexity of the process for obtaining legal aid was ‘quite manifestly’ beyond the parents’ capabilities.
It was only due to the goodwill and charity of Withy King solicitor Rebecca Stevens, working pro bono, that they secured any assistance, he noted.
‘This state of affairs is, to repeat, both unprincipled and unconscionable,’ added Munby. ‘For any parent who lacks capacity the application process itself functions as a barrier to access to public funding.’
A Legal Aid Agency spokesperson told the Gazette that as soon as the correct information was provided, the parents in this case were granted legal aid, subject to a contribution.
‘The means test has long existed and the LAA cannot grant legal aid without accurate information from clients and their lawyers. We have specialist teams in place who can help lawyers assist applicants with the process.’