There has recently been some publicity in the press involving a man who was convicted of killing his child and the sum of 2 million pounds of Legal Aid money is said to have been wasted on legal fees in representing him.
Firstly, I understand that the amount involved was not in fact 2 million pounds but it was still a very substantial sum of money.
It is very easy to be retrospectively indignant regarding Legal Aid costs for someone who does not appear to have been deserving of assistance from the State, but it does make a good headline to stir up the fury of middle England.
But can I suggest, however, that we consider this and take stock of what the alternatives would mean?
Firstly, in relation to the criminal proceedings and when there is an extremely serious charge, it is only right and proper that there be full representation provided so that there is an equality of arms with the State who is bringing the prosecution. The Legal Aid Agency cannot and should not be expected to assess the prospects of an acquittal or form its own view as to the person’s guilt.
The same principally applies for care proceedings for children within family law. Within Legal Aid for Family Law, the only instance where legal representation is automatically available, without any assessment of a person’s financial circumstances or the merits of the case, is if the party is a parent in an application for a care or supervision order brought by the Local Authority.
“None merits tested” is exactly what it says. The parent is automatically entitled to Legal Aid whatever the circumstances. The parent is facing the might of the Local Authority, and while the Local Authority’s budget is certainly not bottomless, it is certainly considerably more extensive than that of a private individual whose means may well be extremely limited. The parent should be able to have access to representation when the situation is so serious and the outcome could be the permanent removal of children from the family as a result of the intervention of the State.
Because this is a State intervention case then the balance of power has to be maintained. This is something which successive Governments have adhered to despite the drastic reduction to the Legal Aid system in 2013.
This means that even the most negligent parents will still be entitled to Legal Aid for care proceedings. The alternative is that the Legal Aid Agency would be expected to form a view, right from the outset, and based upon the Local Authority’s paperwork as to whether they, not the court, thought that the Local Authority had demonstrated sufficient grounds for bringing the proceedings and crossing the threshold of significant harm. Would anyone want the Legal Aid Agency to prejudge their guilt or culpability at the outset and decide to ‘throw them to the wolves?’
The same does not apply to everyone in care proceedings and it has increasingly been my view that there are other people who are drawn into public law proceedings who do not enjoy the advantages of automatic ‘none means, none merit tested Legal Aid’.
There are other family members who may seek to apply to intervene in the proceedings such as grandparents or other relatives, especially if they have had negative viability assessments from the Local Authority and wish to challenge them and seek an independent assessment. They can still apply for Legal Aid because it is a public law matter and therefore within the scope of the reduced Legal Aid system, but in this case they have to have passed the test of both merits and means – in other words they have to qualify financially. Grandparents who may have savings that take them over the limit, for example, would not be able to obtain public funding.
There are others who are drawn into care proceedings unwillingly but for whom the outcome of those proceedings have significant consequences. If there is an unexplained non accidental injury to a child then sometimes there can be a number of persons any one of whom might have been responsible for causing this injury.
This collection of people is often described as a ‘pool of perpetrators’. These may be people who were around at the relevant time when according to the medical evidence the injury was sustained and the court may have to have a ‘Finding of Fact’ hearing to determine responsibility. Because those other people who could be friends or family members could be found by the court to be guilty of causing the injury then they are brought into the proceedings as interveners and are required to attend and participate.
Again, they can apply for Legal Aid for representation but again it is means and merits tested. Either they may not qualify at all financially or there are inevitable delays in obtaining the approval of the Legal Aid Agency for representation.
The result certainly matters because if the court formed a view that a family member had been responsible for an injury then that would be a ‘finding of fact’ that would stand as conclusive for all future purposes and would be expected therefore to have serious repercussions for their ability to care for their own children.
I think there is a case for arguing that anyone who is brought into care proceedings as an intervener, for a ‘finding of fact’ involving a pool of perpetrators, should for the purposes of the ‘finding of fact’, be entitled to the same none merits - none means tested Legal Aid as a parent would. Whilst their liability may not be at stake, their own future life could be very seriously prejudiced by an adverse finding.
However, I have no expectation that the state is likely to extend the Legal Aid system in that way.