The underlying issue in this case 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, argues, be adopted outside the family.
That, however, is not the issue currently before me. What I have to grapple with is the profoundly disturbing fact that the parents do not qualify for legal aid but lack the financial resources to pay for legal representation in circumstances where, to speak plainly, it is unthinkable that they should have to face the local authority’s application without proper representation.
Sir James Munby (president of the Family Division) certainly started boldly in his verdict of the shocking case of D(A Child)  EWFC 39, handed down late 2014.
As his summary indicates, the basic facts of the case revolve around care orders. Sir James quotes from Baker J’s summary of the case history (p5) as the preamble to his own (scathing) verdict. Sir James is evidently outraged by the whole proceedings surrounding D (A Child)- and expresses his outrage in a very measured but scathing manner.
Sir James commences his verdict by simply summarising the facts of the case, and previous proceedings for the first nine pages. The bare facts of the case, as recounted by Baker J, are as follows. D was born in 2011. His mother was later assessed
(5) as being on the borderline of a mild learning disability. His father was found to have a more significant cognitive impairment, with an IQ of around 50. In the earlier proceedings described below, a psychological assessment concluded that he lacked capacity to conduct litigation.
The father (who later married the mother in church) has held down a job for 12 years to support his family. When D was born, local authorities at once started care proceedings. After a successful 16 week residential placement in a local authority foster placement, the family was moved to a new home, with great support available from various state agencies, and support from both sides of the family.
As such, D remained with his parents, with local authorities and the extended families providing a great deal of support. However, there were concerns as to the future, and as to whether D would remain with his parents long term. These were expressed by many parties throughout the proceedings, and such a removal was outlined in various care orders imposed; a care order of November 2012 additionally forbade the removal of D without seven days’ notice, unless there was an emergency.
These concerns materialised in 2014. March 2014 saw the local authorities serve the parents with notice that they intended to remove D. The father sought legal advice. Being ineligible for legal aid, he was represented throughout the whole proceedings pro bono. Appeals and hearings and case management proceedings followed each other in rapid succession, as the parents fought to keep their child. At every stage, the state refused to return D to the parents. Indeed, Marshall J issued an order that amidst its conditions stated that “This is a case where permanent placement outside the family must be considered as a possible outcome.” In support of this was an assessment by an independent social worker, Helen Randall. She was unable to recommend that D remain with his parents, and found that, with the lack of any other suitable relatives, the D should be adopted.
With Marshall J sending the matter forward to settle adoption and contact arrangements, the local authority initiated adoption proceedings under s22 of the Adoption and Children Act (2002). The case appeared before Sir James Munby in October 2014- with the President handing down his verdict later that month. With the previous care orders having expired, the immediate matters of law before the judge were the adoption proceedings from the statue under s22, and the father’s application under s39 of the Children Act (1989).
At this stage in his verdict, Sir James seems to digress, as he covers the relevant provisions of what legal aid remains after the infamous Legal Aid, Sentencing and Punishment of Offenders Act (2012) (LASPO). After setting out the various tests and provisions, at p18 it is stated that
The parents’ capital amounts in all to a very modest £3,250 or thereabouts, an amount so small that they are not disqualified from legal aid on that ground. The father’s disposable monthly income (his gross income less income tax, national insurance, employment expenses, dependants allowance and net rent) was assessed in May 2014 as amounting to £767.64 and in June 2014 as amounting to £806.94. The upper limit for disposable monthly income – the amount above which one is ineligible for legal aid – is £733.00. So, the father and the mother are disqualified from receiving legal aid because the father’s disposable monthly income in May 2014 was £34.64 too much and in June 2014 was £73.94 too much.
(19) The father’s modest earnings disqualify him, and therefore the mother, from receiving legal aid. They cannot afford to fund private representation. They are, at present, wholly dependant on the good will of members of the legal profession who, to their enormous credit, and acting in the highest traditions of the profession, are acting pro bono, that is, for no fee and paying their travel and other expenses out of their own pockets.
However, the whole saga started because the parents have learning disabilities. As such, the father (but not the mother), as a protected party is required by the Family Procedure Rules (2010) to have a litigation friend to assist them in court. Given the financial constraints involved, the Official Solicitor had agreed (again, pro bono) to act as that litigation friend; this is outside the normal role of the Official Solicitor, and the public funding available to him. However, although the Official Solicitor was very willing to act pro bona for the father as litigation friend, there was the matter of court costs. Under legal aid, there would be protection from an adverse costs order; there being no legal aid, there was no such protection, which exposed the Official Solicitor and his meagre public funding to potential hefty court costs. As such, the Official Solicitor being official required to safeguard the public purse, had unfortunately (and unwillingly) to decline to represent the father further.
It was further established that neither parent alone has the mental capacity to represent themselves in court. September 2014 saw moves to lodge a judicial review in the case, citing the unlawful aspects of some of the legal aid provisions. According to a response form the Treasury Solicitor, any claim would have been resisted.
(22) The progress of these claims is stymied: the parents are financially ineligible for legal aid to pursue a claim for judicial review, and those who might otherwise be willing to act pro bono for them in judicial review proceedings are unwilling to run the risks of adverse costs orders.
Having finished setting out the facts and law behind the case- at p26 et seq he comments on the whole saga. Instead of commenting, he is scathingly critical of the whole proceedings. He cites a great deal of case law and legal provisions as he sets our that the Family Court should settle such matters in a just and fair manner, in line with legislation.
P31 indicates the full scale of Sir James’ wrath, as he calmly sets out how
i)The parents are facing, and facing because of a decision taken by an agent of the State, the local authority, the permanent loss of their child. What can be worse for a parent?
ii) The parents, because of their own problems, are quite unable to represent themselves: the mother as a matter of fact, the father both as a matter of fact and as a matter of law.
iii) The parents lack the financial resources to pay for legal representation.
iv) In these circumstances it is unthinkable that the parents should have to face the local authority’s application without proper representation. 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.
If his parents are not properly represented, D will also be prejudiced. He is entitled to a fair trial; he will not have a fair trial if his parents do not, for any distortion of the process may distort the outcome. Moreover, he is entitled to an appropriately speedy trial…So delay in arranging for the parents’ representation is likely to prejudice the child. Putting the point more generally, the court in a case such as this is faced with an inescapable, and in truth insoluble, tension between having to do justice to both the parents and the child, when at best it can do justice only to one and not the other and, at worst, and more probably, end up doing justice to neither.
vi) Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that the State is not in breach of the State’s – the United Kingdom’s – obligations under the Convention? As Baker J said in the passage I have already quoted, “It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.”
In his decision, the judge once again refers to Q v Q  EWFC 7, and effectively throws down a challenge to the state. In addition to inviting the state to challenge his verdict if it so desires, the judge also makes reference to the fact that he has heard no other argument than that of the state.
Sir James concludes by directing that there be a further hearing. In the meantime, the state is to use all possible means to arrange funding for the parents, from whatever agency. Failing that, Sir James himself will direct and order one agency or authority to fund the parents in their legal representation. He further directs that copies of the judgement be circulated to the Lord Chancellor, the Legal Aid Agency (LAA), and HMCs, in order that they might consider alternative avenues of funding. The reality behind such provisions is that Sir James is only too keen to raise this case at the highest level to show just how unjust and unfair the whole saga has been.
Before handing down the judgement, the verdict was circulated to the parties concerned. After that, the LAA reassessed the father’s means, and issued limited and emergency funding for prior hearings. Although late, it was a welcome gesture, and a very sheepish and cowed LAA that made the payment.
Sir James Munby is clearly very angry at the whole situation; his language is very strong for a judge. He spends of most of the verdict simply telling the facts of the case. Such a simple retelling of the facts, without prejudice or emotion, only serves to illustrate the shocking nature of the case. His judgement is a bold and very blunt and forceful criticism; as such, it is in fine judicial tradition.
When writing about significant cases, there is often scope and need to comment on the case, or the verdict. In the case of D (A Child) there is no need for that. The simple facts of the case, as retold in the verdict, in themselves paint their own story, and their own commentary.
D (A Child) serves as a shocking indictment of British law and justice in the 21st Century, and shows the worrying trend that litigants may not actually be able to adequately represent themselves in court- and not just in family matters. However, in Sir James Munby, there is a judge who is a fierce advocate for such rights, and whose angry bellow in this matter will be heard all the way from the Royal Courts of Justice, to the Ministry of Justice, to the LAA, and to social services; he will not rest until the matter is fully settled. He is not afraid to firmly stand up for the right of the litigant, whatever the merits of the case, and his is not afraid to condemn or anger agencies of the state, in the pursuit of natural and fair justice.
As such D (A Child) just happens to show both the worst and the best aspects of British justice in the 21st Century.