The president of the Family Division has threatened to make the court itself pay for unrepresented parents battling to stop their child being put up for adoption.
Sir James Munby said the state has ‘simply washed its hands of the problem’ of two parents in their case with Swindon Borough Council.
The local authority has recommended their two-year-old son be adopted outside the family – a decision the parents oppose.
In a judgment published on Friday, Munby said he was grappling with the ‘profoundly disturbing fact’ that the parents do not qualify for legal aid but lack the money to pay for their own legal representation.
According to Ministry of Justice rules, the upper limit for disposable monthly income to be eligible for legal aid is £733. The father’s disposable monthly income was £34.64 over the limit when his means were assessed in May.
So far, the parents, both of whom have learning disabilities, have relied on pro bono work representation – in particular from Withy King solicitor Rebecca Stevens (pictured).
Munby said Stevens, who has spent more than 100 hours working for free on the case, had shown ‘devotion to the client far above and far beyond the call of duty’.
But the judge made it clear that if legal aid is not available he will instruct another element of the public finances to fund the parents’ case.
He will decide at a hearing on 13 November whether representation will be funded by the local authority, the legal aid fund or HM Courts and Tribunals Service.
He said: ‘Thus far the state has simply washed its hands of the problem, leaving the solution to the problem which the state itself has created – for the state has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession.
‘This is, it might be thought, both unprincipled and unconscionable.’
As a postscript, Munby added that the Legal Aid Agency has reassessed the father’s means and has granted an emergency certificate, limited at this stage to past hearings in May and July 2014 and subject to agreement to pay a contribution of £133.77 from capital and £96.38 each month from income.
However, the situation with regards to future proceedings has yet to be resolved.
Responding to the judgment, Bar Council chairman Nicholas Lavender QC said parents fighting to keep their children should never be required to represent themselves in court.
‘These are exactly the situations which the Bar Council warned about when the government was proposing, through LASPO, to remove legal aid from thousands of individuals involved in family, housing, welfare and employment disputes.
‘Defending yourself against a local authority means going head-to-head with the government, and without a highly trained advocate on your side, the odds are stacked against you.’