On Thursday this week (13th November), Sir James Munby, the president of the Family Division, will be deciding which part of the state should pick-up the bill for representing parents in a case concerning adoption proceedings for their child which have been brought by a local authority. In an earlier judgement in the case, (Matter of D (a Child) [2014] EWFC 39), Munby said that the State had “simply washed its hands of the problem” and warned that provision of adequate representation to the parents facing the loss of their child was necessary to comply with article 6 (right to a fair trial) and article 8 (right to family life) of the European Convention on Human Rights.     The child’s mother is described as having a “mild learning disability” and his father has more significant learning disabilities. The father has been assessed as not having capacity to conduct his own case, but his income was just above the threshold for receiving legal aid, (he has subsequently qualified for emergency legal aid for another part of the case, but not for the proceedings currently before Sir James).     In March this year the local authority gave the parents notice that they intended to remove their child. With no legal aid and no means to pay their solicitor, Rebecca Stephens, has been working for the father on a pro bono basis. Stephens, of south-west firm Withy King, told the Law Society Gazette this week that she cried “my heart out” the day a district judge refused to grant an injunction to prevent the child been taken away from his parents. So far she has put in over 100 unpaid hours on the case.     In an especially hard hitting passage in his previous judgement, Sir James said that “it might be thought, both unprincipled and unconscionable” for the state to rely on the goodwill of lawyers to work for nothing in such cases and that it was “unthinkable that the parents should have to face the local authority’s application without proper representation.” If legal aid is unavailable Sir James ruled that the court then needed to explore what other source of public funding was available. He advanced this same argument in a case he decided in August this year (Q v Q [2014] EWFC 7), but believes that in the current case the issue of which part of the state should pay for the parent’s representation is “even more pressing.”     If the local authority had decided to take care rather than adoption proceedings, the parents would have been entitled to legal aid regardless of means. This raises the question whether the government should change its policy and allow such cases to be covered by the legal aid.     Overall the judgement can be interpreted as Sir James throwing down the gauntlet to the government to come up with funding or, to challenge his interpretation of the law by launching an appeal. All the relevant parts of the state, including the Lord Chancellor, have been invited by Sir James to make submissions on the issue of who should pay for the representation.     It seems to LAG that Munby’s view is that if legal aid is unavailable for such cases, then the state has to make available another source of funding to ensure equality before the law. It seems on Thursday he will decide where this should come from.   Pic: Sir James Munby