In the Guardian last week, it was reported that Sir James Mumby, President of the Family Division has invited the Secretary of State for Justice to intervene in a case where the father, who had applied for an order under the Children Act 1989 to see his son, had not been granted legal aid. (Q v Q  EWFC 7 – http://www.bailii.org/ew/cases/EWFC/HCJ/2014/7.html). Sir James came to the conclusion that, owing to the circumstances of the particular case, a fair hearing may not be possible. He commented;
“…[T]here could be circumstances in which, without the assistance of a legally qualified representative, a litigant might be denied [the right to a fair trial and] to be able to present [their] case properly and satisfactorily.”
So concerned was Sir James that his decision was made in spite of the background to the litigation; a case which had been ongoing for four years and after hearing, what one will imagine would have been forceful and persuasive submissions from counsel for the mother and despite the fact that father was a convicted sex offender. It seems that Sir James’ concern was such that he believed that without father being represented by counsel, justice may be denied.
It is well known and documented that in April 2013, the Ministry of Justice drastically reduced the cases in which legal aid would be available to individuals who are in the midst of a family breakdown. Sir James’ comments and his Judgment as a whole are the first time that the Judiciary have openly and publicly commented on the effect that the legal aid cuts are having on the Family Court system and those parents embroiled in legal disputes.
Sir James’ judgment is not necessarily the first time the lack of legal representation has been cited as a reason for fair trial rights being breached. As long ago as 1979, the European Court of Human Rights recognised the problems inherent in the lack of legal representation; Airey v Ireland (Application no 6289/73) (1979) 2 EHRR 305.
The changes to the availability of legal aid are finally beginning to take their toll on cases presently before the Family Court. “We told you so” is the likely thought traversing the minds of family lawyers and Judges the length and breadth of the Country. The outcome of Sir James’ invitation to the Secretary of State should be known in June 2014 – no doubt all those working in the family law sector will be watching with bated breath.
It does seem that we can take some comfort from the fact that the Judiciary continue to recognise the importance of ensuring fair trial rights are observed and are not sacrificed upon the alter of expedience and furthering the economic policies of Whitehall.