Green Paper On Legal Aid Initial Observations #4: Private Law Children Cases

I write this on the train to the FLBA conference in Leeds. I have typed and lost it several times and have resolved to post it before it once again disappears into the ether. You will therefore have to excuse any jerkiness, repetition or overlong sentences. I wanted to post and so I post in the knowledge it is imperfect but heartfelt.

Pa 4.101 of the Green Paper reads as follows:

In the Government’s view, the issues at stake in these cases are extremely important, and the very emotional nature of the subject matter, and the personal circumstances of the individuals involved, will often make it difficult for them to present their own case. We recognise that families must have a practical means of taking part in proceedings brought by public authorities that affect the integrity of the family unit. We do not consider that there are viable alternatives to legal aid. We therefore consider that legal aid funding is justified.

This for me is significant. This section of the text sets out the rationale for continuing legal aid in public law children cases, but what I am struck by is that the thrust of this paragraph is applicable to private law cases as much as it is to public law cases. The emotional nature of the subject matter, the personal circumstances of the individuals involved in private law cases often make it difficult for parents to present their own case in any dispute where there is a risk that they will lose contact with their children or that they will be taken from their care. This is no less so in private law disputes where cases frequently involve domestic violence, mental health, substance abuse, poverty and intergenerational problems with parenting and relationships – and where the practical consequences are as serious for some parents and children even if the potential legal consequences are less so (when compared with adoption orders) – a child’s relationship with one parent can be regulated by the court, but it is significant that it can be effectively destroyed or terminated at the will of one parent if there is not access to private law proceedings, whereas a child’s relationship with one or both parents may be legally and effectively terminated only as a consequence of public law proceedings. The Green Paper purports to aim to redefine the scope of legal aid so as to continue to protect the vulnerable, but in respect of parents in private law proceedings I think it signally fails.

The quote I have set out above talks about the ‘integrity of the family unit’. Of course, private law cases arise precisely because the family unit has already been disrupted and because there is a risk without access to justice of that unit contracting at the will of one parent so as to leave a child without a relationship with both parents. That severing or curtailing of a relationship may be justified in some cases, in most it will not. Such a scenario is as great an interference with a child or parents’ article 8 rights to family life as is the same outcome in the context of public law proceedings, but whilst in public law proceedings that interference is not permitted without sanction of the court and where necessary and proportionate in order to protect a child, the reverse is true in the case of disputes between parents where a resident parent may well be able to implement such drastic decision unless curtailed by the court’s intervention. Why then do such cases not warrant the protection that legal aid affords to the vulnerable non-resident parent?

As presently drafted the reforms will ensure that not only is a non-resident parent, most likely a dad, most unlikely to obtain legal aid to bring an application to ensure that he is able to maintain his relationship with his children, but that if he does he may well be faced with a legally represented ex-partner making allegations of domestic violence. In only some cases will such allegations be true. Such inequality of arms will lead to injustice for fathers and for children.

There is an underlying assumption behind much of the popular drive to curtail private law proceedings: that the parents involved in such proceedings are culpable for that, are pursuing their own selfish agenda and should not be supported in so doing. Such cases are brushed aside – they ought to be able to sort it out. Of course they ought. But this trivializes the nature of the disputes that fill our county courts, it treats both parents as equally culpable for the failure represented by the need to resort to proceedings where they may not be equally culpable, and it fails to appreciate the complexity and intractability of many of those disputes. It fails to appreciate that many (most) applications are made for good, child centred reasons, and that most parents do try as far as they are able to avoid unnecessary hostility – for most parents court is a weapon of last resort rather than choice. It is true that some cases are straightforward and can and should be resolved through alternative dispute resolution or just by a good old fashioned chat over a cup of coffee. Many – from my observation most – are not so simple. Some cases sadly enable hostile parents to continue and rerun old disputes to the detriment of the family and the public purse – we need to identify and manage these better but the trick is to do this without failing those parents who come to court with legitimate issues and concerns, and without failing their children.

Most parents are not blameless, and there is scarcely ever a problem parent versus an angel, but there is often an impasse that cannot be resolved without the decision being taken out of the hands of the parents – agreement ultimately cannot be imposed. If one parent is intransigent the other ultimately has no option but to come to law. This indeed is the purpose of the Children Act 1989 – the no order principle ensures (or should ensure) that no order is made unless necessary, but offers a mechanism for ensuring that children retain appropriate relationships with both parents where this cannot be achieved in other ways.

By all means redouble our efforts to divert appropriate cases to ADR (my own view is that it will rapidly become clear there are not so many of them, and that many agreements reached in such fora will not stick but to keep on trying is clearly right and necessary and I hope I am proved wrong), by all means increase judicial case management and efforts to encourage speedy resolution – by consensus if possible. But do not deny those parents who come genuinely to court asking for help to maintain their relationship with their children the right to an effective remedy.

On a separate but related point:

4.105 confirms that funding will be available for rule 9.5 proceedings (guardian’s in private law disputes). I have no disagreement with this. However, on current proposals it is highly likely that in such proceedings one or both parents will be litigants in person. The administrative burden likely to be placed upon children’s solicitors and counsel in such cases is likely to be significantly greater than in cases where legal representation is available for all parties. Given proposals to cut lawyers fees by 10% there are real questions to be asked about the financial viability of undertaking such cases and about the extent to which it is realistic to expect children’s solicitors to take up the slack when public funding is unavailable for parents.

One thought on “Green Paper On Legal Aid Initial Observations #4: Private Law Children Cases

  1. Of course, now that CAFCASS have cleared their backlogs, they will be amply able to offer the plentiful time to talk some semblance of sense into the in person litigants. Better still, the judiciary, by prudent case management, will not be fettered by the catharthic soliloquy that most parties expect to have a forum for, at least initially, from their day in court.

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