The two parents sought to challenge a decision that their child should be taken into care. Each parent had learning difficulties, but their income though small precluded the grant of legal aid. They wished to appeal against final care orders, but such cases did not come within the exemptions.
Held: Sir James Munby spoke of the severe inequity and consequences of the withdrawal of legal aid: ‘The father has a learning disability. He is a ‘protected party’ within the meaning of Rule 2.3 of the Family Procedure Rules 2010. As a matter of law he is not able, as a protected party, to act without a litigation friend. Quite apart from that, the father’s learning disability in any event requires him to have considerable support and assistance to be able to participate effectively in the proceedings. The Official Solicitor has agreed to act as his litigation friend. The Official Solicitor cannot be compelled to act as anyone’s litigation friend. His practice is to agree to act only if there is funding for the protected party’s litigation costs, because his own budget – the monies voted to him by Parliament – is not sufficient to enable him to fund the costs of litigation of the type the father is involved in. The Official Solicitor was willing to act here only because the father’s solicitor and counsel have agreed to act, thus far, pro bono. But without the protection against an adverse costs order which the father (and derivatively the Official Solicitor) would enjoy if the father had legal aid, the Official Solicitor has a possible exposure to an adverse costs order – for instance, if the local authority was to obtain an order for costs against him – which, understandably, he is unwilling to assume. The consequence is that the Official Solicitor was not willing to act as the father’s litigation friend unless Ms Stevens agreed, as she has, to indemnify him against any adverse costs orders. And as if all this was not enough – indeed, far more than enough – I am told that Ms Stevens has spent in excess of 100 hours, all unremunerated, working to resolve, thus far without success, the issue of the father’s entitlement to legal aid. This is devotion to the client far above and far beyond the call of duty.’
Sir James Munby P
Civil Legal Aid (Financial Resources and Pa
yment for Services) Regulations 2013, Civil Legal Aid (Merits Criteria) Regulations 2013
England and Wales
Cited – In re X (A Child) (Surrogacy: Time Limit) FD 3-Oct-2014
Extension of Time for Parental Order
The court considered the making of a parental order in respect of a child through surrogacy procedures outside the time limits imposed by the 2008 Act. The child had been born under Indian surrogacy laws. The commissioning parents (now the . .
Cited – A Father v SBC and Others CCF 23-May-2014
Lists of cited by and citing cases may be incomplete.
Children, News, Legal Aid, Legal Professions
Updated: 01 November 2021; Ref: scu.538294