We have all considered and fretted over the potential for injustice and inequality of arms when the government, in its infinite wisdom, withdrew legal aid from private law proceedings. The case of MG &JG v JF  EWHC 564 (Fam) is yet another case which allows us to sit back and exclaim ‘we told you so’!
On 10th March 2015 Mr Justice Mostyn handed down his judgement in the case of MG &JG v JF which provides a unbridled critique of the (almost) complete removal of legal aid from private law proceedings.
The Applicants ( the mothers) were civil partners. In 2005 they decided that they would like a child and to this end, responded to an advert placed by JF, in which he offered to be a parenting partner. After lengthy discussions it was decided that JF (the biological father) would be named on the birth certificate and that he would all have equal legal rights in respect of the child. MG was artificially impregnated and on 24th April 2007, JFG was born.
From 2007 to 2012, JF had contact with the child but in October 2012 relations broke down between the mothers and JF. On 4th December 2013, JF issued proceedings to deal with issues of contact, education and health.
Ultimately, a detailed consent order was drawn up and the parties hoped to make a final order at a scheduled directions hearing. In relation to funding, the parents instructed counsel under the Direct Access Scheme and the Guardian’s solicitors were paid under a legal aid certificate in the usual fashion. The women struggled to pay their fees and applied for a costs allowance to be paid by the father under Schedule 1 to the Children Act 1989.
Mr Justine Mostyn ordered JF to pay 80 percent of the costs of both MG and JG and in doing so referred to the long line of authorities demonstrating the ongoing war between the judiciary and the Lord Chancellor in relation to legal funding. In real terms, this determination equated to the father, who could not be described as overtly wealthy, paying the mothers 12,202 and £8,394 respectively toward their costs. In addition, it was ordered that the father should pay 80% of all future costs in relation to therapeutic work. MG and JG will have to fund 10% of the therapeutic work.
One might firstly question why MG and JG should not represent themselves. In relation to this Mr Justice Mostyn opined “In this case it is my firm view that it is impossible for MG and JG to be expected to represent themselves having regard to the factual and legal issues at large. There would be a gross inequality of arms, and arguably a violation of their rights under Article 6 and 8 of the European Convention on Human Rights…some may say that this is grossly unjust; I myself refrain from comment.””
It is of note that JG and MG split up with a degree of acrimony and the case also contained a dispute as to vaccination. Notwithstanding, one might question how different this case is from those we have undoubtedly all seen passing through our local courts, wherein one party is unrepresented and arguably ‘outgunned’ throughout the course of proceedings.
In the course of his judgement, Mr Justice Mostyn stated that it was grossly unfair that JF should have to pay MG and JG’s costs “But that is where the government has left him. It is a sorry state of affairs,” Perhaps most strikingly, he went on to say “It can be safely assumed that the criticisms [of the changes to the legal aid provisions] I have recounted have fallen on deaf ears. Based on the decisions I have cited, including no fewer than four from the president himself, it can be said that in the field of private children law the principle of individual justice has had to be sacrificed on the alter of public debt.”
Whilst many of us may agree with the sentiment behind the decision and perhaps applaud the imagination applied in utilising the Schedule 1 provisions, was it right to make an order for funding in this manner? Schedule 1orders are intended to be either for the child, or for their benefit. Can it properly be said that an order requiring a parent to pay the legal costs of another parent is for the benefit of the child?
In practical terms, it can be predicted that more parties will attempt this tactic, unless there is a successful appeal. An additional problem is the potential for parents not to engage in proceedings in fear of being burdened with costs, undoubtedly in some cases to the detriment to children’s welfare. We all knew that there would be victims of the government’s decision to abolish legal aid; I think that few could argue against the assertion that JF was one of them.