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England and Wales Family Court Decisions (other Judges)

You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> H, Re [2014] EWFC B127 (14 August 2014)
Cite as: [2014] EWFC B127

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Case No: MB13P01405


Russell Street
14th August 2014

B e f o r e :


Re H


Draft Judgment


Crown Copyright ©

  1. Her Honour Judge Hallam : Although this case is proceeding by consent, I am going to give a short judgment because I am so concerned about the legal aid position in this case. When I have given judgment I am going to direct that a transcript of what I say should be obtained and that that should be sent to Mr David Keegan and I am also going to arrange that a transcript is sent to the President of the Family Division.
  2. This case concerns the welfare of four children. They are CH, who was born on 21st April 2004, so she is ten; JH, who was born on 22nd July 2006, so she is eight; JoH, who was born on 4th April 2010, so he is four; and LeH, who was born on 7th May 2012, so he is two. They are the children of MH and LHu. The father has made a private law application to this court for a child arrangements order whereby the children would reside with him. There has been a lengthy involvement of the local authority with this family since 2005; the children have been subject to child protection plans. Middlesbrough Borough Council remain involved on a child in need basis. The father, as I say, has made an application for a child arrangements order asking that the children should live with him. In her statements the mother made it clear that she opposed that course. The children have been with him now for some time. During the course of these private law proceedings there have been a number of reports from the local authority; they are lengthy, detailed reports.
  3. The matter came before District Judge Reed in May of this year, on 19th May. As I say, it was apparent at that stage that the mother opposed the father's application. Furthermore, it was apparent that the local authority supported the father in his application. There was a recommendation about contact. When the matter came before District Judge Reed, the local authority, Middlesbrough Council, were made a party to the proceedings. At that stage the mother was self-representing and the judge was clearly concerned about that and there is a lengthy preamble to the order that he made in May. That preamble recorded that the attendance of GHu in court to support the mother was not appropriate, given the issue in the case. He recorded that:
  4. 'In the absence of legal aid to secure representation of the mother, it is inevitable that her article 6 and her article 8 ECHR rights will be at risk of being violated, given her evident speech, hearing and learning difficulties, if the case proceeds without further representation.'

    That could not have been a clearer indication of the judge's opinion and consideration of this matter and therefore he also said that:

    'On its facts and having regard to the surrounding circumstances and, in particular, the recent party status of Middlesbrough local authority, the criteria for assessing an exceptional grant of legal aid are likely to be made out.'

    He went further and said that the local authority involvement in the current proceedings is based largely on public law and child protection issues relating to the respondent mother's fifth child, subject to public law proceedings which concluded in 2014, resulting in both care and placement orders. He said there is considerable similarity and overlap in the issues which present in both sets of proceedings. That part of the preamble continues with:

    'Furthermore, in the circumstances of this particular case and those of the respondent mother, it would be unrealistic and potentially unjust to expect the respondent mother to be a self-representing person.'

    Therefore he adjourned what was to be a final hearing on that occasion in order for a further application to be made to the legal aid authorities.

  5. The matter has come back before me for a final hearing and once again the mother has been refused legal aid. I am faced with a situation where the father is legally represented, with the assistance of legal aid. He is supported by a local authority, who is also legally represented and today, very fortunately, the mother is represented but that is only on a pro bono basis and through the good offices of a local firm of solicitors, Cygnet Law, who have sent a legal clerk to assist the mother today. That has been fortunate; it has meant that the mother at least has had some assistance. She still has not had, and I mean no disrespect to Mr Nixon, but she has still not had full legal representation today. I have made enquiries of the parties before me today as to why that is. I am told that the father is in receipt of legal aid because there are child protection issues and he has the support and involvement of social services. The solicitors who were representing the mother prior to today, again presumably pro bono, made an application for legal aid to be granted in this as an exceptional case. That was refused. I have not seen the full reasons for that refusal but I am told that Mr David Keegan, who is head of the High Cost and Complex Cases section, gave a summary of the reasons why legal aid was not given to this mother and I am told that that was because the absence of legal aid would not prevent her having effective access to the courts. I accept that not having legal aid would not prevent this mother having physical access to a court but in her situation, in my judgment, she has undoubtedly been prevented from having intellectual access to this court. Any access , therefore, in my judgement would not be "effective".
  6. She is not sufficiently disadvantaged to say that she does not have capacity to litigate. She has capacity to litigate but in my judgment that is only with the assistance of a solicitor. She has difficulties in hearing, in speech and intellectual difficulties. She is unable to read or write. They are not fanciful difficulties. In previous public law proceedings there has been a report from Dr Cooper, who is a psychologist, informing the court of the mother's cognitive difficulties and learning difficulties. Having seen the mother in court, I am satisfied that she would not have been able to represent herself in a case as complex as this and therefore, in my judgment, she was, to all intents and purposes, prevented from having access to this court save for, as I say, the extremely fortunate event that someone was prepared to step in and represent her pro bono.
  7. The second matter that I am told that Mr Keegan relied upon was that there would be no breach of Convention rights. I find that statement astounding. A district judge had already found, having seen the mother, that undoubtedly her article 6 and article 8 rights would be breached. When I pause to consider the article 6 first of all, which is to ensure that people have fair trials in the courts of this country, and in order to do that should have equality of arms, I cannot see how anyone can come to the conclusion that this mother's article 6 rights were not in jeopardy. I repeat again the father has the support of a legal representative. The local authority, who are advancing a case contrary to that of the mother's, has legal representation. Without legal aid, therefore, the mother, on her own, would be facing two advocates pursuing a case against her. On any basis that cannot be equality of arms. She is the party with the least ability, the greatest vulnerability and she should have had the benefit of legal representation. She is faced with the father, who has the greater ability and the support of social services; as I say, both being legally represented. In effect, this vulnerable mother is faced with two advocates running a case against her and she does not even have one. I cannot think of a clearer breach of article 6. Article 8 - this matter is clearly about family life and the mother's right to family life, whether the children should be in her care or not and what contact she should have. Again, I cannot see any conclusion other than that her article 8 rights were engaged, as the district judge said, in my view, properly, in the court below.
  8. It has been fortunate that she has had the assistance of someone today because this matter has reached agreement. However, it is not right that legal professionals should have to attend a hearing, as complex as this one, without remuneration. The mother still has concerns about the father's care for the children and many of those concerns are shared by the local authority, so she has not been running a fanciful case. The matter has resolved; it has resolved with an order and a very detailed working agreement. Again, I cannot see how this mother could have entered into that working agreement which has resolved this case without the assistance of Mr Nixon here to help her understand it, consider whether it was right and ultimately agree to it. Therefore, I have given this judgment because I am satisfied that this mother should have had legal aid and should have been represented. Mothers in her situation should have proper and full access to the court with the assistance of legal advice. As I have said, I am going to order a transcript of this judgment, both for the Legal Aid Board and also because I feel that it should be shown to the President of the Family Division to show what is happening in these courts. I am told that since April 2013 there have been only eight or nine cases where exceptional legal aid has been granted. I do not know if that is correct, but if legal aid is being refused to people such as this mother I am satisfied that injustices will occur. Had this matter proceeded without the assistance of Mr Nixon to a fully contested hearing, this court would have been put in an impossible situation. Having said that, I approve the order. I am grateful to everybody for the time they have spent and I am also, as I keep saying, very grateful to Mr Nixon for having attended today.
  9. End of draft judgment

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