gavelA senior judge has criticised the government’s legal aid reforms after a couple with learning disabilities were unable to claim assistance for legal costs in their child custody case.

Sir James Munby, president of the family division, made scathing comments in his judgement of the case known as In the matter of D (A child), where Swindon Borough Council was arguing that D should be removed from his parents, who both have learning disabilities, and adopted.

Neither parent qualified for legal aid to assist in their case, nor had the money to pay for legal representation, something Munby described as “profoundly disturbing”.

He added: “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.

Munby added that if D’s parents are not properly represented, he 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.

“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?”

He noted that Rebecca Stevens of the law firm Withy King had already put in 100 hours of unpaid work to help sort out the case.

Munby then directed there be a further hearing at which, assuming that the parents still do not have legal aid, he will decide whether or not their costs are to be funded by one, some, or all of the local authority, the legal aid fund, or Her Majesty’s Courts and Tribunals Service.

Chairman of the Bar Council Nicholas Lavender QC, agreed with Munby’s assessment. “Parents fighting to keep their children should never be required to represent themselves in court, especially when they are vulnerable individuals,” he said. “These are exactly the situations which the Bar Council warned about when the government was proposing, through LASPO [the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012], to remove legal aid from thousands of individuals involved in family, housing, welfare and employment disputes.

“Defending yourself against a local authority means going head-to-head with the government, and without a highly trained advocate on your side, the odds are stacked against you.”