Sir James Munby, President of the Family Division, has recently spoken out about the poor decision making of the Legal Aid Agency in both private law cases and cases involving Local Authorities. He stated that this is skewing the court process and risks undermining positive outcomes for children and parents.
Whilst legal aid is a matter of policy and thus the judiciary must tread carefully, it is possible for a Judge to intervene if an absence of legal aid (and thus legal representation) leads to unfairness and could be considered potentially prejudicial to the interests of children involved.
In private law cases, legal aid is no longer available unless there is a risk of harm to a child or domestic violence (within the preceding 48 months) has been reported and can be documented. Even within domestic violence cases, it can be the position that one party receives legal aid (usually the alleged victim) and the other party is not entitled. As such, one party is immediately disadvantaged and it can cause problems in ensuring fairness for the Judge.
The Law Society has commented: ‘Legal aid cuts and wider funding cuts are chipping away at access to justice’.
In the recently reported case of D ( A Child ) ( No 2 ) [ 2015 ] EWFC2 the President focused on the difficulties for parents in obtaining legal aid, even in cases where the Local Authority is involved with the family. The case concerned an application by a Local Authority for a Placement Order in respect of a child ( an order which authorises the Local Authority to place a child with adoptive parents ) and in which the parents had encountered extreme difficulties in securing legal aid. The President indicated that he felt that the process involved in achieving legal aid was ‘manifestly beyond the capabilities of the parents. It is both unprincipled and unconscionable that the parents had only finally been able to obtain legal aid as a result of their lawyers undertaking a considerable amount of work pro bono’.
In a recent Judicial review concerning access to legal aid in cases where there has been domestic violence, the review was unsuccessful. The court indicated that there are victims of domestic violence who should be able to have access to legal aid but don’t. They have said Parliament should address this problem.
The Court found that the lack of legal aid is not an actual bar to accessing justice, but of course for a victim of domestic violence having no representation and having to challenge their perpetrator in person leaves many without effective redress.