Post by Colin Henderson on May 22, 2015 13:15:03 GMT
Hat-tip to our friends at the Legal Aid Handbook for this.
Since LASPO family lawyers have found themselves representing parties pro-bono in a series of horrendously difficult cases where the parties are incapable of acting for themselves even with judicial help or where the prospect of an alleged abuser cross-examining his alleged victim is unacceptable. Senior family judges in two such cases decided that they could order payment of a legal representative from court service funds to see that justice was served.
Problem is that flies in the face of the clear intention of parliament - however loathsome and offensive it might be - that such persons simply DO NOT GET representation paid for by the state. And in the case where the "power" was first used it wasn't a now out-of-scope matter but one where the LiP father was just over the financial limits and therefore would alos not have qualified under old rules. So were the judges not going beyond their powers?
Yes they certainly were says the Master of the Rolls at the Court of Appeal. Not surprising, but that is the end of that - no more "shadow" or "quasi" legal aid in civil courts.
The Handbook report is here: "In what we called the development of a “shadow legal aid scheme”, the President of the Family Division, Sir James Munby, said in Q v Q that in certain circumstances the Court could order that a party not eligible for legal aid be funded by HMCTS. In the first use of that power, HHJ Bellamy, in K & H, ordered that representation of a father be funded where serious allegations had been made against him and where he would otherwise have to cross-examine in person the child who made the allegations.
The Lord Chancellor appealed that decision, and the Court of Appeal has today given judgment – Re K & H (Children)  EWCA Civ 543 (not yet on Bailii, but the judgment can be downloaded from the Coram Childrens Legal Centre website – CCLC, and the Association of Lawyers for Children, intervened in the case). Giving the judgment of the Court, the Master of the Rolls Lord Dyson said that there was no such power"