• March 28, 2024
 Special Measures, HMCTS Funding And ‘Lay Advocates’

Special Measures, HMCTS Funding And ‘Lay Advocates’

Today’s Family Lawyer recently reported on Re C (Lay Advocates) and on ‘lay advocates’ (surely a misnomer?) it touched on a tricky issue: funding of special measures in family proceedings and the fact that Legal Aid Agency (LAA) refused to pay in this case (which you don’t mention). Re C was a care case where the parents were said to need help to understand the proceedings. Medical advice included that they need ‘the support of their solicitor at all formal meetings and all court hearings’ and ‘the support of a lay advocate at all formal meetings and all court hearings’.

The special measures provision in Family Procedure Rules 2010 Pt 3A (from November 2017) made it clear that the new rules were not intended to ‘direct’ that ‘public funding be available’ to pay for these measures. Apart from payment privately (not an option in care proceedings) there are three sources of help: solicitors themselves (but Keehan J said there was not time for them to help these vulnerable parents), payment by HMCTS (or so Keehan J held) and legal aid.

HMCTS payments are dealt with by HMCTS ‘internal’ Guidance to family courts, which mentions payment for intermediaries for a party or witness. Keehan J makes no mention of this guidance (set out in full in Family Court Practice at 2.766[2]); nor of ‘intermediaries’ or ‘measures’ which are the terms of art under Pt 3A. We do not know if he specifically relied on the Guidance or on Pt 3A.

Legal aid should surely have been available; but no attempt seems to have been made – so far as can be deduced from the law report – to compel the LAA (by appeal and judicial review where need be) to pay. Surely if these were really ‘advocates’ of some form, their assistance is ‘legal’ not something else? Keehan J could have required the LAA to come to his court to explain themselves. Or maybe HMCTS will pay up (however do you enforce Keehan J’s order where HMCTS were not parties to the application?)? Maybe they will always do so when the question arises again?

A real problem for judges in cases where parties are of low, or limited, means is that payments from public funds are uniquely the province of Parliament: that is, of statute and delegated legislation. How tax-payer’s money is paid out is carefully guarded as the right of Parliament and has been since the 1381 Peasant’s revolt. Let us hope Keehan J’s inherent jurisdiction adventure into public funding will not prove to be another nail in the coffin for judge’s v politics debate signalled by the Tories….

 

David Burrows, Solicitor Advocate, Family Law Writer and Commentator

Solicitor advocate, family law writer and commentator, founder contributor to Family Court Practice (Red Book).

Leave a Reply

Your email address will not be published. Required fields are marked *