I were wrong

Sadly, the Great Wheeze that was Q v Q is no more. It has been comprehensively dismantled by the Court of Appeal in K & H (Children) [2015] EWCA Civ 543 as a spot of creative but impermissible judicial law-making (see Suesspicious Minds here and judgment here). Of course that is a sport that all our best judges have indulged in from time to time, and our own President is not immune from its attractions (think Re X (A Child) (Time Limit : Surrogacy) [2014]).

Although it had it’s own neat internal logic : court = public body >> public body must act compatibly with art 6 (& 8) >> art 6 requires representation >> representation cannot be paid for by other means >> therefore court must pay to comply with duty – that chain of logic was broken by the Court of Appeal in a number of places.

So, “art 6 requires representation” went – there were (in this case at least) other ways of doing it and avoiding a breach.

And “court must pay” went on the basis that the court has no power to pay, Parliament having gone to some care to limit and define the circumstances in which the state will and will not pay for representation in drawing up a detailed legal aid scheme. In short : Parliament enacted LASPO ON PURPOSE (may un-God forgive them) – and this is a good old case of judiciary treading on Parliamentary toes, which I concede, having read the judgment, is pretty difficult point to counter.

And so : bluebell time is over in Kent (and indeed all over this fair jurisdiction), and up and down this green and pleasant land members of Her Majesty’s Judges are gritting their teeth, rolling up their sleeves and stepping down off benches in preparation for questioning vulnerable adults and children directly on behalf of the parties. I bet they are overjoyed (*sarcasm*) – this is something most judges have strenuously resisted and is utterly contrary to the idea of judicial neutrality that is entrenched in many more established members of the judiciary.

The times are a changin and so is the job of judge.

I suppose that it remains theoretically possible for the court to declare itself in breach of art 6 thereby clearing the way for an HRA damages claim – but such damages claims are unlikely to afford a practical cure to the problem for the poor old LiP. The best that declarations and damages awards are likely to be is an embarassment for the Government. Based on events to date I don’t rate the chances of the Court of Appeal’s plea for Parliament to reconsider or bad publicity arising from injustices resulting in a stampede to reinstate legal aid for even a tiny percentage of cases so unjustly caught by it.

2 thoughts on “I were wrong

  1. No: If a party is refused legal aid that party MUST be allowed to cross-examine in person. It took statute to change that in the criminal courts and for the family courts to refuse to allow it would be further impermissible judicial law-making. Not nice for either party but that’s too bad.

  2. Good try though, @familoo; and MFPA 1984 s 31G(6) is still live.

    And the good news (https://dbfamilylaw.wordpress.com/2015/05/23/no-court-funding-of-advocate-to-help-the-judge/)? The master of the Rolls says we can always ask the Lord Chancellor to pass a law to extend legal aid – yes really – to cover extreme cases wherre vulnerableadults/children are to be X-examined by thier abusers. I’m not holding my breath on that…

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