Because it’s an immigration decision this little gem may have passed you by. It is a bit of a recipe for a hurty head, but it is an essential read for anyone with a case involving a litigant in person in a sticky situation who may need to go down the route of exceptional legal aid.
I’m going to pick out the bits which are relevant to family cases – there is a lot of dry stuff about the specifics of immigration that will make you go boss eyed so I’ll skip that. I’m also going to intentionally summarise, so I do not promise precision accuracy. The important bit to note is that these were cases which were dealt with on the basis of a potential breach of article 8 ECHR NOT article 6 ECHR (because article 6 does not apply to immigration cases). In most family cases there will also (obviously) be a potential article 8 issue, and there may also be an article 6 issue too, particularly in cases of a quasi criminal nature.
Next. Exceptional in this context (i.e. s10 LASPO) doesn’t mean “rare” or “really almost never” or whatever other vanishingly improbable description you care to conjure up. It just means that such cases are an exception to the limitations on scope provided for in other parts of LASPO. So. When the guidance says “Rather, section 10(3)(b) should be used in those rare cases where it cannot be said with certainty whether the failure to fund would amount to a breach of the rights set out at section 10(3)(a) but the risk of breach is so substantial that it is nevertheless appropriate to fund in all the circumstances of the case.” it’s wrong.
The question in the case was what sort of risk of breach of material rights did there need to be for an applicant to fall within s10 LASPO?
The guidance says that “Caseworkers will need to consider, in particular, whether it is necessary to grant funding in order to avoid a breach of an applicant’s rights under Article 6(1) ECHR. As set below, the threshold for such a breach is very high.” and the question that caseworkers are directed to ask is “will withholding of legal aid make assertion of the claim practically impossible or lead to an obvious unfairness in the proceedings?”
Paragraph 12 of the judgment is a helpful precis, resonating strongly with family cases:
“The guidance sets out various matters which should be taken into account in judging the importance or seriousness of what is at stake both for the applicant and more generally. Factual, legal or procedural complexity is material. Relevant considerations explicitly referred to include whether the degree of emotional involvement that the applicant is likely to have is incompatible with the degree of objectivity expected of advocates in court. In practical terms that is highly likely to be the situation in most appeals by immigrants who wish to enter or remain. Whether the applicant has any relevant skills or experience is a material consideration. Again, in all but a very small fraction of cases an applicant will lack skills and experience. On the other side of the coin, the court’s or tribunal’s familiarity with having to deal with litigants in person is material. In addition, the ability of an applicant to understand English and any disabilities he may suffer are material. If the applicant lacks capacity within the meaning of the Mental Capacity Act 2005, the caseworker must consider how capable his litigation friend is to present his case.”
The test of practical impossibility or obvious unfairness set out in the Guidance derives from a decision of the European Commission of Human Rights in X v UK (1984) 6 EHRR 136. To cut a long judgment short, Collins J rehearses all the relevant authorities on this topic, and concludes that the test in X v UK, and accordingly in the Guidance, is too high. X v UK is inconsistent with other more persuasive authorities like Airey v Ireland, Steel & Morris v UK (2005) 41 EHRR 22, and W v UK (1988) 10 EHRR 29 which, significantly, is a family law authority.
Collins J says (pa 22)
“The court cited a passage from W v UK (1988) 10 EHRR 29, another case concerning restriction and termination of rights of access by a parent to his child. The law then in force provided no statutory remedy whereby the applicant could contest the isolated issue of the decision to restrict or terminate his access to his child, save by judicial review which did not give an appeal on fact. In Paragraph 62 (p.119) the court stated:-
“It is true that Article 8 contains no explicit procedural requirements, but this is not conclusive of the matter … [.] the court is entitled to have regard to [the decision making] process to determine whether it has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by Article 8.”
There is no reference to X v UK and the test is fairness and whether, as the court observes in Paragraph 64, “The parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests.”
The parallels with private law proceedings where it is said that an unrepresented father’s relationship with his child should effectively be severed are obvious.
Other authorities considered are AK & L v Croatia (Application No: 37965/11) (2013), again family authority. Pa 24 of the judgment in Gudanaviciene says:
“The ECtHR has more recently confirmed the need to recognise that Article 8 has its procedural requirements. The case in question is AK & L v Croatia (Application No: 37965/11), judgment having been given on 8 January 2013 and became final on 8 April 2013. The case concerned the divesting of the applicant AK of her parental rights in respect of her son L. In Paragraph 63 the court recognised that the views of a child’s natural parents must be available to the authority which makes the relevant decision and any court to which an appeal lies. This means, the court said:-
“The decision-making process must … be such as to ensure that their views and interests are made known to, and duly considered by, the local authority and that they are able to exercise in due time any remedies available to them.”
The applicant AK had a mild mental disability, a speech impediment and a limited vocabulary. Thus her interests were not adequately protected since she had been required to appear unrepresented in the proceedings which divested her of her parental rights. Having regard to the serious consequence to her right to family life, the failure to grant representation meant that there was a breach of Article 8 since the decision could not be regarded as necessary for the purposes of Article 8(2).”
The domestic cases in which the X v UK test had been accepted were cases in which the point had not been argued.
Pa 28 is worth repeating in full:
“It seems to me to be clear that the key considerations are that there must be effective access to a court and that there must be overall fairness in order that the requirements of Article 6 are met. One aspect of effective access must be the ability of a party to present all necessary evidence to make his case and to understand and be able to engage with the process. So much is apparent from AK & L v Croatia. It must be borne in mind that both before a tribunal and a court the process is adversarial. Thus the tribunal cannot obtain evidence where there are gaps in what an applicant has been able to produce. Equally, it may have difficulties if there is defective written material put before it in appreciating whether there is any substance to a claim or even if any particular human rights claim is properly raised. I think the words ‘practically impossible’ do set the standard at too high a level, but, as Chadwick LJ indicated, the threshold is relatively high. No doubt it would generally be better if an appellant were represented, but that is not the test. Nevertheless, the Director should not be too ready to assume that the tribunal’s experience in having to deal with litigants in person and, where, as will often be the case, the party’s knowledge of English is non-existent or poor, the provision of an interpreter will enable justice to be done.”
s10(3) LASPO (the power to make legal aid available where necessary or appropriate to prevent breach of material rights) is concerned with procedural rights. That is the procedural requirements inherent in any article, rather than a breach of the substantive right itself. see pa 40.
Also referred to are the obiter remarks of Coulson J in M v Director of Legal Aid and Casework  EWHC 1354 (Admin). Collins J disagreed with those remarks that suggested that cases falling within s10(3)(a) would be extremely rare – if as Coulson J suggested that section could only be satisfied if there was complete certainty at the outset that there would, without qualification, be a breach – s10(3) would never come into effect at all!
What all this boils down to is that the test in the guidance – which applies as much to family s10 applications as immigration - is too high. Even without article 6, article 8 carries with it procedural requirements which must be taken into account (pa 51). Those procedural rights require fairness and an effective right to put forward a case.
The concluding paragraph of the judgment as it appears on BAILII appears to be cut off in its prime, reading as follows :
“In the circumstances, the decision of the Director in each of the claims is quashed. I have indicated in individual claims whether I was of the view that legal aid should have been granted, but I will leave open to Mr Chamberlain to submit that in any in which I have indicated that view I should not so order. The Lord Chancellor’s Guidance is in the respects I have indicated in my judgment unlawful. I think that the appropriate relief would be a declaration that in those respects it is unlawful, but I will leave counsel to make”
So, although I think a declaration has been made that the Guidance was unlawful – this is not 100% clear.
In any event, expect amended Guidance in due course….and hopefully an upturn in the number of exceptional funding applications granted. This case has had a positive impact on at least one family case of which I am aware and it may be that family lawyers preparing or assisting with s10 applications will want to refer to this case.