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Family judge adjourns custody case amid legal aid furore

Published 12/06/2014

Justice secretary Chris Grayling has been asked by Sir James Munby, the most senior family judge in England and Wales, to give an explanation of how a custody case can go ahead without legal aid.

It is thought that Sir James’ judgement has laid down a challenge to the policy put in place by the Ministry of Justice (MoJ) that orders the removal of public funding for the majority of matrimonial and separation cases. In the case in question, the judge was forced to adjourn the case because he had reached a legal impasse.

Constraints enforced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 have resulted in family courts being flooded by unrepresented claimants for whose claims legal aid is no longer available.

In a family case identified only as ‘Q v Q’, a convicted sex offender who wants to keep up contact with his son has been severely hindered in his efforts due to a lack of legal aid, rendering the court unable to deliver a fair hearing.

The president of the family division, after considering various options, suggested that if justice is to be delivered, the father, who speaks very little English and needs an interpreter, may require representation and the right to call expert witnesses. Munby added that precedents set by the European court of human rights highlighted “that there could be circumstances in which, without the assistance of a legally qualified representative, a litigant might be denied (their right to a fair trial)".

"The question then is what is to be done because, on one view, we have … reached an impasse, which is unthinkable. This case raises, in quite an acute form, a problem which is increasingly troubling judges sitting in the family court at all levels."

Either the mother, who receives public funding, or the court itself, may have to pay, he indicated, “in order to ensure a just and fair hearing”.

He continued: "It seems to me that these are matters which are required to be investigated in justice not merely to the father, but I emphasise equally importantly to the son, as well as in the wider public interest of other litigants in a similar situation to that of the father here … There is the risk that, if one has a process which is not fair to one of the parents, that unfairness may in the final analysis rebound to the disadvantage of the child."

By way of a conclusion, Munby went on to say: "I propose to adjourn this matter for … a short time, inviting the Ministry of Justice – or it may be the secretary of state for justice or it might be the minister for the courts and legal aid – to intervene in the proceedings."

The MoJ has so far defended the implementation of its consecutive cuts, arguing that the legal aid system of England and Wales, costing £2bn annually, is “one of the most expensive in the world.”


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