The High Court has this week ordered the government to pay for a litigant in person to be represented at a Family Court hearing despite the fact that he is not eligible for legal aid.
It is the second time in four months a senior judge has directed HM Courts & Tribunals Service to bear the costs of representation.
The judgment by His Honour Judge Clifford Bellamy said the court had the power to direct HM Courts & Tribunals Service to bear the cost of a representative rather than allow a litigant to cross-examine a child in court.
Bellamy said of the hearing that it would be “absurd” to suggest that a father automatically had the means to pay for representation just because he was above the monthly threshold of £734 disposable income a month and was therefore ineligible for legal aid.
He explained that section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act, which offers exceptional case funding, acted as a “safety net” for those whose case is outside the scope of legal aid.
Law Society head of legal aid, Richard Miller, said: “Civil legal aid members may want to be aware of the point made by His Honour Judge Bellamy when he said, ‘the court’s power to direct that the cost of certain activities should be borne by HMCTS is… ‘an order of last resort’.
“The message for members is to be aware of this case, and to consider using it in argument if they have a sufficiently serious case that may qualify for similar support.”
The case follows a ruling in October when Sir James Munby, president of the family division, handed down a judgment saying “some state agency” should pay the costs of legal representation in a case.
Munby’s judgment, one of the most direct interventions over legal aid funding by a judge, related to the removal of a child by Swindon borough council from his parents, both of whom have learning difficulties.