In the Matter of D (A Child) (No 2)

1. The underlying issue in this case, as I noted on an earlier occasion, can be stated in a single sentence. Should a little boy, D, live with his parents, or, if they cannot adequately look after him, with other members of his wider family, or should he, as the local authority, Swindon Borough Council (SBC), argues, be adopted outside the family. At present, however, I continue to be focused on a different issue: the availability or not of legal aid for parents who find themselves in a situation where, to repeat what I have said before, it is unthinkable that they should have to face the local authority’s application without proper representation.

2. The matter first came before me on 8 October 2014, following which I handed down a judgment on 31 October 2014: Re D (A Child) [2014] EWFC 39 . In a postscript to that judgment I recorded (para 41) that, after I had sent the judgment to the parties in draft, I was informed that “the situation in relation to legal aid has moved on since the last hearing but has not been resolved.” I said that it needed to be, before the next hearing, which was listed before me on 13 November 2014. It was not.

3. I stated (para 33) that I was “willing to hear further submissions from any interested State party, or indeed any other interested party.” I directed (para 36) that: “… there be a further hearing at which, assuming that the parents still do not have legal aid, I shall decide whether or not their costs are to be funded by one, or some, or all of (listing them in no particular order) the local authority, as the public authority bringing the proceedings, the legal aid fund, on the basis that D’s own interests require an end to the delay and a process which is just and Convention compliant, or Her Majesty’s Courts and Tribunals Service, on the basis that the court is a public authority required to act in a Convention compliant manner.” I said (para 37): “Copies of this judgment, and of the order I made following the hearing on 8 October 2014, will accordingly be sent to the Lord Chancellor, the Legal Aid Agency, Her Majesty’s Courts and Tribunals Service and the Association of Directors of Children’s Services, inviting each of them to intervene in the proceedings to make such submissions as they may think appropriate. If they choose not to intervene, I shall proceed on the basis of the conclusions expressed in this judgment”.

4. Following the handing down of that judgment I received an application to intervene dated 10 November 2014 by the Association of Lawyers for Children (ALC) and letters, each dated 11 November 2014, from Andrew Webb, the Immediate Past President, on behalf of the Association of Directors of Children’s Services (ADCS), and from Shailesh Vara MP, Parliamentary Under-Secretary of State for Justice in the Ministry of Justice.

5. In its application the ALC made a number of observations, to three of which I draw attention. The first is that: “Even if pro bono representation is an option, it will rely on the parent who may lack capacity and suffer from learning disabilities or difficulties recognizing that there is some action that can be taken or application that can be made. The parent will then need to persuade a lawyer to represent him or her on a pro bono basis. This expects too much and is no safeguard against breaches of their Article 6 and 8 rights.” The second is that: “The father’s lack of capacity, and both parents’ learning disabilities, are not uncommon. This is not an isolated case. Research has indicated that of parents involved in care proceedings, a significant number suffer from mental health issues and learning disabilities … Estimates of the number of “care parents” with learning disability vary but they are disproportionately represented compared to the population at large.” A number of references to the academic literature in support of that proposition are cited. Finally, the ALC makes these two assertions: “Section 10 of LASPO is not being implemented so as to provide the safety net for the most vulnerable. Placement orders in particular should be included in those proceedings for which non-means-tested and non-merits-tested public funding is provided.”

6. I draw attention to two of the points made by the ADCS. The first is that: “From the perspective of a child on a journey to a permanent placement, ADCS would argue that the impact of a care order and a placement order are effectively equivalent; the same is true of their impact on the child’s parents. ADCS would therefore argue that equivalent checks and balances are required before either order is made. There appears to be no logic to support treating the orders differently simply because they have become decoupled in complex proceedings In this case it would appear to ADCS that the application of the current legal aid rules has led to an injustice and could create a detrimental impact on the child in question. We would agree with the court that the State has created a problem by introducing these rules and should therefore find a means of resolving the problem.” The second relates to the likely impact on local authorities, were the funding burden in cases such as this to fall on them: “ADCS would point to the fact that any shift of a financial burden from one arm of the State to another is likely to lead to a direct, further reduction in service. It is the ADCS view, based on our knowledge of Local Government, that if a new burden were to be picked up by a Local Authority, it would almost certainly lead to a reduction in provision in a closely related area of expenditure. Local Authorities have, effectively, fixed cash limits within which to operate in any financial year and are required by law to balance their budgets. Whilst Local Authorities have a strong track record in the flexible management of very large budgets, the impact over time of the government spending decisions has been to decimate some services and to limit that traditional flexibility. The likely response of most Local Authorities, in the current financial circumstances, would be to pass a new burden in respect of children and families directly to the Director of Children’s Services to be managed within budget.”

7. The letter from the Minister said: “I am grateful for the opportunity to intervene but the Ministry of Justice does not propose to do so in proceedings in this case.” It continued: “I understand that the position has moved on considerably from that at the time of the hearing on 8 October and following handing down of your judgment. It may assist if I set out briefly the current position based on information provided by the Legal Aid Agency (LAA): • Following a request for further information by the Legal Aid Agency, D’s parents provided further details in respect of the case and of their financial position at the end of September. As a result, they were assessed as being financially eligible to receive civil legal aid subject to a contribution. • On 8 October D’s parents were therefore offered funding for representation in respect of proceedings under section 39 of the Children Act 1989 on the basis that they each pay a monthly contribution of £96.38 and a one-off contribution of £133.77 from their capital. I understand that both D’s parents intend to accept this offer • Subject to confirmation that these contributions have been received, substantive legal aid certificates will be issued by the LAA. • On 28 October (just 3 days before your judgment was handed down on 31 October), the local authority applied for a placement order application under section 22 of the Adoption and Children Act 2002 . At the time your judgment was handed down the LAA had no record of an application from D’s parents for legal aid in relation to these proceedings although it is understood that since that time an application from one of the parents has been received and is under consideration by the LAA. • Legal aid is available in relation to such proceedings, subject to means and merits. I understand that, provided these tests are satisfied, D’s parents would not be required to pay any additional contribution to their legal aid costs beyond that already called for.”

8. The Minister added: “I acknowledge that in this case D’s parents and their representatives have faced considerable uncertainty for some time over the legal aid position. However, it is a necessary feature of means and merits testing that legal aid cannot be made available until information has been provided which shows that the statutory tests have been met. The LAA will act promptly in assessing applications but is reliant on the accuracy and currency of the information received from clients and their legal aid providers.”

9. I attach as an Annex to this judgment a composite chronology, prepared by Withy King (WK), the father’s solicitors, and Goodman Ray (GR), the mother’s solicitors, setting out their dealings with the LAA and with SBC from 20 March 2014 until 5 December 2014. It is largely self-explanatory but one matter requires explanation.

10. Because the father lacks capacity, any benefits payable to the family are, in accordance with a direction given by the Secretary of State for Work and Pensions, paid to an Appointee, in this case SBC. Appointeeship is a corporate responsibility, administered by the Appointee and Deputyship Team at SBC, which also handles the father’s earnings. Some payments – for example, a one-off payment of more than £200, regular expenditure in excess of £200 per month, or payments for the benefit of another person – require the approval of senior management, colloquially referred to as a ‘Panel’. In 2007 SBC entered into an agreement with Capita to provide various administrative support and financial management functions for the Appointee and Deputyship Team. With effect from 1 October 2014 this agreement was brought to an end and these functions were brought back ‘in-house’.

11. In large measure, the Chronology set out in the Annex speaks for itself. I leave others to ponder its implications and to consider how the present system can and should be improved. For my own part I make only the following observations: i) It took from 20 March 2014 until 1 December 2014 for the parents’ legal aid applications to proceed to the point where the necessary certificates were granted. Although the LAA had indicated by the letters dated 8 October 2014 that legal aid would be made available for the ongoing proceedings, it took the best part of another two months for all the formalities to be concluded. ii) D was removed from his parents on 25 April 2014 (see Re D , para 6). Because of the ongoing delays in obtaining legal aid, the final hearing will not take place until 9 February 2015. Even allowing for the delay until 17 July 2014 resulting from the hearings before Baker J, Her Honour Judge Marshall and Black LJ (see Re D , para 7), the further delays since then are unconscionable. Whatever the administrative excuses, the human reality is that a little boy has been separated from his parents pending a final decision for far too long – and for a period which is manifestly excessive not least bearing in mind, if only by way of analogy, the 26-week period now mandated by section 32(1) of the Children Act 1989 as amended by the Children and Families Act 2014 . The delay, as Ms Deirdre Fottrell and Ms Marlene Cayoun, acting for the father, pointed out at the hearing on 13 November 2014, and again on 2 December 2014, itself raises issues – and, I would add, not merely for their client, D’s father, but also for D himself – in relation to both Article 6 and Article 8 of the Convention. iii) The complexity of the process involved in obtaining legal aid for D’s parents is, quite manifestly, beyond their capabilities. Given their limitations it is perfectly obvious that if they were to obtain the legal aid which was – eventually – granted, they would need professional assistance. It is no thanks to the system that they were able to avail themselves of that assistance; it was, as I have already had occasion to point out (see Re D , paras 20, 31) available to them only because of the goodwill, the charity, of the legal profession which, in the person of Ms Stevens of WK (and in singling her out I do not forget everyone else who has acted here pro bono ), has shown devotion to the client far above and far beyond the call of duty. This state of affairs is, to repeat ( Re D , para 31(vi)), both unprincipled and unconscionable. As Ms Fottrell aptly observed, for any parent who lacks capacity the application process itself functions as a barrier to access to public funding which, in the context of a placement application, involves a potential breach of Article 6. And if the ALC’s observations are well-founded, there must be many parents with difficulties similar to those of D’s parents. iv) One of the aspects of the system which seems to have contributed significantly to the delays was that although, for good reason, both of D’s parents required legal aid, the grant of legal aid to D’s mother, who has no income or money of her own, was dependent on her making financial contributions that were assessed on her husband’s income and necessarily had to be funded by him – something which he, as a person under disability, could not himself agree to. So, the mother’s ability to avail herself of legal aid was entirely dependent on the decisions of third parties – SBC and the Panel – over whom she had and has no control.

12. As I have said, the matter came back in front of me on 13 November 2014. In addition to the other unresolved issues in relation to legal aid (as to which see the Annex), the issue of the use of the father’s monies to fund the mother’s legal aid contribution was still at large, though a decision from the Panel was said to be imminent. The order I made recorded the court’s view that: “it appears to be palpably in the Father’s interests that the decision of the panel should be in the affirmative for the following reasons: (a) unless the Mother is able to accept her offer of legal aid the Father will not be granted legal aid; (b) in terms of the matrimonial relationship and the family unit it is plainly in the Father’s interests that the Mother is able to move forward on the same terms as the Father; and, (c) it must be in his interests as the father of the child that the Mother be granted legal aid.” As appears from the Annex, the Panel’s decision the same day was to approve payment of the mother’s contributions out of the father’s monies.

13. I was able to give various directions in relation to the substantive proceedings, which I provisionally fixed for hearing before me on 9 February 2015. However, given the overall state of play, I adjourned the matter for a further hearing which, in the event, took place on 2 December 2014. The order I made identified the matters to be considered at that hearing as including: all avenues of possible funding of the parents’ legal representation; any application for permission to pursue a Judicial Review; any application by any interested party to be an intervenor in these proceedings; and any application for an intermediary to assist either parent and any funding issues arising. I adjourned the ALC’s application for leave to intervene.

14. The next hearing took place on 2 December 2014. As can be seen from the Annex, the final piece of the legal aid jigsaw had fallen into place the day before. My order recited the position as follows: “The Father has a substantive funding certificate to cover all work undertaken to date and up to a final hearing in both the s.39 CA 1989 and s.21 ACA 2002 applications. The Official Solicitor will, in the usual manner, conduct an ongoing review as to the merits of the case and this may effect whether the funding certificate will remain in place. The Mother has a substantive certificate to cover the period up to the exchange of final evidence in respect of both the s.39 CA 1989 and s.21 ACA 2002 applications, whereupon it will be subject to a merits review and report to the LAA which will determine whether the certificate will be extended to cover the final hearing.”

15. I gave directions with a view to an Issues Resolution Hearing in January 2015 (subsequently fixed for 13 January 2015) and the final hearing on 5 February 2015. Both of D’s parents had made applications for the assistance of an intermediary. In relation to that, my order provided that each was to file separately by 9 January 2015: “the outcome of an expert assessment of whether they each require the assistance of an intermediary in relation to the final hearing … ([to] encompass the need for assistance in all matters ancillary to the final hearing, rather than just the giving of their evidence). The costs of each of these assessments shall be respectively born by the Father and the Mother’s public funding certificates. The court determines that this expense (in the amount of £492 excluding VAT and travel costs) is proportionate and necessary for the fair resolution of the issues in this case.”

16. The use of an intermediary is becoming increasingly frequent, as the court becomes ever more alert to the need for ‘special measures’ in appropriate cases. Ms Fottrell referred me to four cases where intermediaries have been used: Re X (A Child) [2011] EWHC 3401 (Fam) , Re M (A Child) [2012] EWCA Civ 1905 , Re A (Vulnerable Witness) [2013] EWHC 1694 (Fam) , [2013] 2 FLR 1473 , and Re A (Vulnerable Witness: Fact Finding) [2013] EWHC 2124 (Fam) , [2014] 1 FLR 146 . Two more examples are Wiltshire Council v N [2013] EWHC 3502 (Fam) , [2014] Fam Law 418, and In re C (A Child) (Care Proceedings: Deaf Parent) [2014] EWCA Civ 128 , [2014] 1 WLR 2495 .

17. The cost of funding an intermediary in court properly falls on Her Majesty’s Courts and Tribunals Service because, as the LAA has correctly pointed out, an intermediary is not a form of ‘representation’ but a mechanism to enable the litigant to communicate effectively with the court, and thus analogous to translation, so should therefore be funded by the court: see Re X , para 37, and C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin) , [2010] 1 All ER 735 , paras 26-27; see also Q v Q, Re B (A Child), Re C (A Child) [2014] EWFC 31 , para 52. But where the services of an intermediary are required otherwise than during a court hearing, the cost falls on the LAA: see Re C , para 27. And the cost of obtaining a report from an expert as to capacity and competence and/or as to the extent of any special measures required, as opposed to the cost of providing services from an intermediary, likewise falls on the LAA: Wiltshire Council v N , para 79.

18. It was therefore entirely appropriate for me to make an order in the terms set out in paragraph 15 above, and I have to say that I found the LAA’s response on 5 December 2014, as noted in the Annex, both surprising and concerning. The response from Ms Stevens of WK was robust. An up-dating note from Ms Fottrell and Ms Cayoun dated 8 December 2014 informed me that Ms Stevens had requested the LAA to put its decision in writing. In the event the LAA seems to have had second thoughts, for on 11 December 2014 it emailed Ms Stevens to say that prior authority had been granted for an assessment as to whether an intermediary was required for the father. (I assume that the same decision has been arrived at in relation to the mother.)

19. The legal aid issues having seemingly been resolved, the wider issues canvassed in my previous judgment ( Re D , paras 30-36) fall away and no longer require a decision. In the circumstances, and because there is no need for me to deal with them, it is better that I say nothing. Nor is there any justification at present for giving the ALC leave to intervene, so its application stands adjourned. There is, however, one matter to which I must refer.

20. I have set out the parents’ legal aid position in paragraph 14 above. It will be noticed that there is, as yet, no assurance that legal aid will be in place for the final hearing. This causes me some disquiet. Whatever view may be taken as to their prospects of success at the final hearing, a matter on which I express no views whatever, though recognising, as I have earlier noted ( Re D , para 9), that the report of the independent social worker is unfavourable to the parents, I would view with the very gravest concern any suggestion that they should be denied legal aid on ‘merits’ grounds. Given the extreme gravity of the issues at stake and their various problems and difficulties, it is, as I said before ( Re D , paras 3, 31), unthinkable that the parents should have to face the local authority’s application without proper representation. I repeat what I said in my earlier judgment: “To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.” A parent facing the permanent removal of their child must be entitled to put their case to the court, however seemingly forlorn, and that must surely be as much the right of a parent with learning disabilities (as in the case of the mother) or a parent who lacks capacity (as in the case of the father) as of any other parent. It is one of the oldest principles of our law – it goes back over 400 centuries to the earliest years of the seventeenth century – that no-one is to be condemned unheard. I trust that all involved will bear this in mind.

21. This is a case about three human beings. It is a case which raises the most profound issues for each of these three people. The outcome will affect each of them for the rest of their lives. Even those of us who spend our lives in the family courts can have but a dim awareness of the agony these parents must be going through as they wait, and wait, and wait, and wait, to learn whether or not their child is to be returned to them. Yet for much of the time since their son was taken from them – for far too much of that time – the focus of the proceedings has had to be on the issue of funding, which has indeed been the primary focus of the last three hearings. The parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane.

22. I leave the last word to the mother, who, together with her husband, was present at the hearing on 2 December 2014 as at previous hearings. In an up-dating note dated 8 December 2014, her counsel, Ms Sarah Morgan QC and Ms Lucy Sprinz, said this: “The mother was distressed following the last hearing that the child had not, as far as she had heard it, even been mentioned during the course of the submissions and discussions between Counsel (including her own) and the Court. It doesn’t, she remarked afterwards, seem right that so much time has to be taken up about the legal aid when it should be about D.” They added, “Clearly she is right about that.” For my own part I merely pose this question: Is this really the best we can do?