Individual justice sacrificed at the altar of the public debt
Justice – at whose cost?
“The principle of individual justice sacrificed on the altar of the public debt”
MG & JG v JF [2015] EWHC 564 (Fam)
http://www.bailii.org/ew/cases/EWHC/Fam/2015/564.html
Introduction
In the latest in a long line of judicial critiques of the legal aim reforms, the Honourable Mr Justice Mostyn delivered on 10th March 2015 a searing indictment of the (almost-entire) removal of legal aid from private law children applications. However, Mostyn J went further again by making an order in satellite Schedule 1 Children Act 1989 proceedings that the Respondent pay for the representation of the Applicants to the tune of over £20,000…
Background Facts
The facts of the main case are in themselves interesting (extracts from paras 23-27): the Applicant Mothers, MG and JG, were civil partners (partnership now dissolved) and in 2005 decided they wanted a child. The Applicants responded to an entry placed by the Respondent Father, JF, in a register for "lesbian women and gay men seeking a non-sexual parenting partner". JF lives in a same-sex relationship with a man in the south of England. According to his witness statement the mothers "were looking for someone who wants to be a biological father and have a relationship with their child, but doesn't want to be an equal co-parent". There were lengthy discussions. It was agreed that JF would be named on the birth certificate and that JG would be a "legal step-parent" with the idea that all three would have equal legal rights.
MG was impregnated artificially with JF's sperm in July 2006. On 24 April 2007 JFG was born by caesarean section. JF was present at the hospital. A legal agreement as to JG's status was made on 23 May 2007, the day JFG's birth was registered. On 13 August 2007 JFG was registered as an American citizen at the US Embassy.
From 2007 to October 2012 JF enjoyed periodic contact with JFG monthly or bi-monthly. However, From October 2012 serious difficulties arose in relation to the contact of JF to JFG, which included a breakdown in relations between the mothers and father, as well as some hostility from JFG towards contact with his biological father. Father issued his application for contact on 4th December 2013, as well as a further section 8 application seeking specific issue orders about education and vaccination, as well as an application for assessment and therapeutic intervention from a child psychiatrist.
Funding
Both MG and JG instructed counsel under the Direct Access scheme. They enlarged the mortgage on their property by £20,000 to pay costs. This notwithstanding, and together with the fact that counsel were already acting on “heavily discounted” rates, counsel were owed fees. In addition MG and JG owed fees to experts.
By contrast, JF is of reasonable means and privately paid for representation by experienced counsel instructed under the Direct Access scheme. The Guardian, of course, was separately represented by a guardian and by solicitors paid under a legal aid certificate.
In allowing MG and JG’s application for legal funding from JF, Mostyn J referred to the line of authorities demonstrating the battle between the judiciary and the Lord Chancellor and made the followings comments (my emphasis):
“Had MG and JG been in receipt of legal aid, or had they been of means and able to pay for their representation from their own funds without hardship, it is inconceivable that JF would be ordered to pay their costs. In the decision of the Supreme Court of Re T (Children) [2012] UKSC 36, [2012] 1 WLR 2281 it was confirmed that orders for costs in children cases would only be made where reprehensible behaviour or an unreasonable stance was proved against the respondent (see paras 4, 14 and 44). It cannot be said that JF is guilty of such conduct here.” (para 5)
“In this case it is my firm view that it is impossible for MG and JG to be expected to represent themselves having regard to the factual and legal issues at large. There would be a gross inequality of arms, and arguably a violation of their rights under Articles 6 and 8 of the European Convention on Human Rights and Article 47 of the European Charter of Fundamental Rights. So even though it cannot be said that JF has behaved reprehensibly or unreasonably he is the only realistic source of costs funding, subject to whatever contribution MG and JG should make from their own very limited resources. Some may say (and have said) that this is grossly unjust; I myself refrain from comment.” (para 10)
And most strikingly at paragraphs 20 and 36 (my emphasis):
“…It can safely be assumed that the criticisms [of the changes to the legal aid provisions] I have recounted have fallen on deaf ears. Based on the decisions I have cited, including no fewer than four from the President himself, it can be said that in the field of private children law the principle of individual justice has had to be sacrificed on the altar of the public debt. And based on the observation of Aikens LJ, it can reasonably be predicted that the phenomenon of the massive increase in self-representation will give rise to the serious risk of the court reaching incorrect, and therefore unjust, decisions.”
“It could be said that it is grossly unfair that JF should have to pay now £20,596 plus 80% of the future therapeutic costs up to the IRH. But that is where the government has left him. It is a sorry state of affairs.”
Conclusion
It is clear that the upper echelons of the judiciary are resolute in their opposition to the near-blanket removal of legal aid in private children cases. The tone of Mostyn J’s judgment is apologetic towards father and clearly enraged at the attitude of the Legal Aid Agency and the Lord Chancellor.
The grand strategy aside, this case is an interesting application of the Schedule 1 provisions, akin to the ancillary relief costs funding provisions. I cannot imagine that this will be the last of these critiques that we shall see or the last parent left footing the bill for both sides of proceedings.
This article is intended as interest and information only. It should not be considered legal advice and the reader is encouraged to undertake their own research and study of the matters discussed here before relying on the same.
