Accessing Justice with Limited Family Law Funding

The most senior family judge in the UK, Sir James Munby, recently adjourned a child contact case over concerns that the father’s lack of legal representation could harm the child.

The decision is controversial because Sir James’ comments on the case have been seen as a challenge to the way changes to legal aid have been made. Public funding has been removed from a variety of civil legal claims, including swathes of family law, as the Ministry of Justice has faced cuts to budgets.

Families facing legal difficulties should still seek advice from family solicitors as legal aid may be available in certain circumstances and experienced family lawyers can offer advice on other options that might be available.

Q v Q [2014]

Sir James Munby’s comments came after he adjourned a particularly complex child contact case involving a father who was also a convicted sex offender. The man had brought a claim in order to try and maintain contact with his son. The man was unrepresented and could not speak English so would have required an interpreter during the proceedings.

Sir James suggested that the man’s lack of representation and inability to fund the evidence of an expert witness would make it impossible to deal with the case justly and fairly.

However, it was noted that the cuts to legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 may not have directly affected the man’s access to legal aid. Legal aid was withdrawn on the basis of the Access to Justice Act 1999 under the rules for the means and merits test. Previous expert evidence indicated that the child would not be safe in the man’s presence and his legal aid funding was withdrawn.

The Wider Issue of Legal Funding

In adjourning the case Sir James Munby took the opportunity to highlight the difficulties being faced by Family Law judges in a variety of cases due to the litigants’ lack of legal representation. He stated that a litigant might be denied their opportunity to represent their case properly in accordance with rights set by precedent in the European Court of Human Rights.

He went on to suggest that failure to serve justice properly on behalf of the father entailed a risk for the wider public interest in that any parents subjected to a legal process that was unfair could find that that unfairness rebounded to the disadvantage of the child.

The case was adjourned to invite the Ministry of Justice to intervene in the proceedings to decide who would fund the father’s case.

Comment

Although cuts to legal aid mean there is less funding available for Family Law cases, experienced family solicitors can help resolve many family disputes without going to court or incurring excessive fees. For specialist advice, please contact Jeetesh Patel via e- mail JPatel@rollingsons.co.uk or by telephone on 0207 611 4848.