The question of what can be done in complex private law proceedings where the court is of the view that a parent is unable to represent him or herself has understandably been dominating legal headlines. Reported cases have tended to focus on discussions surrounding the circumstances in which HMCTS could be ordered to fund representation following the president’s judgment in Q v Q (No. 2) [2014] EWFC 31, JG. However, Mostyn J’s decision in MG and JG v JF [2015] EWHC 564 (Fam), where a father whose conduct was neither “reprehensible” nor “unreasonable” was ordered to contribute towards the other parties’ costs may, perhaps, represent a solution which is more widely applied in future.

Facts

The two mothers arranged to have a child with the father. They entered into lengthy negotiations and produced a written agreement pursuant to which all three would share equal legal rights in respect of their child who lived with the mothers but spent time with the father. The two mothers subsequently separated and the relationship between all the parties deteriorated. In December 2013 the father applied to court and proceedings became increasingly complex with issues arising in relation to the child’s biological identify, education and a phobia of needles. A Guardian was appointed and an educational psychologist and a psychologist both provided reports.

The mothers sought a contribution from the father of £25,000 towards their legal costs. The complexity was such that the court found it was impossible for the mothers to represent themselves.  For them to do so would, in his judgment, lead to “gross” inequality of arms” and arguably a violation of their Articles 6 and 8 rights. As ever, Mostyn J’s judgment is a helpful synopsis for practitioners looking to revise their knowledge in this area. Summarising the law set out in Rubin v Rubin  [2014] EWHC 611 (fam), CF v KM [2011] 1 FR 208 and Currey v Currey (No 2) [2006] EWCA Civ 1338 the judge concluded that the “following considerations are engaged:

1. The subject matter of the application is centrally relevant, as is the reasonableness of the applicant’s stance in the proceedings.
2. There are generally recognised advantages flowing from competent representation and from there being “an equality of arms” in investigatory as well as in adversarial process.
3. The court cannot make an order unless it is satisfied that without the payment the applicant would not reasonably be able to obtain appropriate legal services for the proceedings. A costs allowance should only be awarded to cover historic unpaid costs where the court is satisfied that without such a payment the applicant will not reasonably be able to obtain in the future appropriate legal services for the proceedings
4. In determining whether the applicant can reasonably obtain funding from another source the court would be unlikely to expect her to sell or charge her home or to deplete a fund of savings. This aspect is however highly fact-specific.

Having satisfied himself that the parents only had the means to make a small contribution to their costs the judge ordered the father to pay £12,202 to one of the mothers and £8,394 to the other (representing 80% of their respective costs) together with 80% of any future professional costs in respect of therapeutic work.

The judge noted that “it could be said that this is grossly unfair” to the father but “that is where the government has left him. It is a sorry state of affairs”. A sorry state of affairs it may well be but it seems likely that the frequency with which such orders are sought, and granted, is set to increase.