Social Welfare Lawyers in the Centre of Birmingham

Re R (Children: temporary leave to remove from jurisdiction)

Re R [2014] EWHC 643 (Fam), 3 March 2014

This is not a Gypsy or Traveller case but a family law case.

Most (if not all) legal aid firms and organisations who provide legal aid, since the setting up of the Legal Aid Agency (LAA) in April 2013, have encountered enormous difficulties in dealing with the LAA. This case makes reference to such difficulties.

HHJ Clifford Bellamy, with regard to the difficulties experienced by the mother’s and the guardian’s solicitors made the following comments:-

81. I return finally to my concerns about the negative, costly and unhelpful impact the Legal Aid Agency (LAA) has had in this case. If this case is at all illustrative of the way the LAA normally discharges its responsibilities then that is deeply troubling. My concern that it might be illustrative of a wider malaise arises not only from anecdotal evidence given to me by solicitors in my role as a designated Family Judge but also from the observations recently made by Holman J in Kinderis v Kineriene [2013] EWHC 4139 (Fam).

83. With that in mind, it is appropriate to consider the experience of the solicitors for the mother and children’s guardian in this case in their dealings with the LAA.

95. The applications for prior authority to instruct an expert have been going backwards and forwards between the LAA and solicitors for some 6 months. Although I have not been given details of the time spent by the solicitors in pursuing this issue with the LAA, it seems to me to be self-evident that it must have been considerable. This process is wasteful and inefficient. Solicitors are being required to deal with a level of bureaucracy that is almost impenetrable. They are also being required to deal with the consequences that flow from decisions that are unappealable including explaining to their clients why they cannot have the expert evidence which the court has directed as necessary. This is unsatisfactory.

96. There is a further point which follows on from the last point. On 28th November Mrs Justice Eleanor King gave clear, detailed case management directions in respect of expert evidence and even went so far as to set out her reasons for not ordering the father to pay a proportionate share of the expert’s fees. Her case management directions on this issue have effectively been overridden by the LAA. That is simply unacceptable.  

97. In light of my criticisms of the LAA I direct that the solicitor for the Children’s Guardian shall forthwith forward a copy of this judgment to the Chief Executive of the LAA and order that he shall respond to it in writing within 28 days.

In light of this Judgment it is hoped that the Ministry of Justice will urgently investigate how the situation with regard to the problems being caused to legal aid firms and other organisations by the LAA can be resolved. See: R(children) Judgment