His Honour Judge Wildblood QC has recently published an anonymised judgment illustrating the potential consequences of LASPO in D v K and B [2014] EWHC 700 (Fam). The judgment arose from private law children proceedings concerning “B” who was 3 years old. The father had made an application for contact. The mother had made a number of serious allegations against the father, including rape, which the father denied. The mother had the benefit of legal aid whilst the father did not.

The judge noted that the mother’s allegations would have to be dealt with at a fact finding hearing and the findings, given B’s age, would have a significant bearing on the father’s relationship with B for many years to come.  HHJ Wildblood QC had invited the Legal Aid Agency to reconsider the father’s application for legal aid as a matter of urgency, which the Agency duly did and then rejected once again.

HHJ Wildblood QC raised a number of points to support the granting of legal aid to the father, including the following:

  1. Were the allegations being dealt with in a criminal court the father would be prohibited from cross-examining the mother in person by s.34 of the Youth Justice and Criminal Evidence Act 1999.
  2. There were a number of serious allegations made, including rape. Any analysis would require the allegations to be put in context and it would be hard to see how a judge asking questions would be able to do that.
  3. With allegations of this seriousness it is important that the respondent should receive advice. This is not something the judge, the mother’s representative of Guardian’s representative could do.
  4. Although the Bar Pro Bono Unit could be approached, or the Attorney-General asked to act as an amicus curiae, neither would be likely to be available and neither would be as satisfactory as the father having his own representation.

This case is part of a larger picture of similar applications being made to the Legal Aid Agency. The Ministry of Justice statistics for Legal Aid Exceptional Funding Application and Determination Statistics for 1st April 2013 – 31st December 2013 show 617 applications made within those 9 months for funding in family law proceedings. Of those 617 applications, 8 in total were granted and 1 received a “positive preliminary view”.