Legal Aid: How ‘exceptional’ really is Exceptional Funding in family law?

Charlie Gard Ruling

Many of us have been touched by the recent public appeal by the parents of Charlie Gard, an eight-month-old who suffers from a rare genetic condition and brain damage. The couple have raised the £1.2 million required to fund treatment in the US after more than 80,000 people donated.

However, in a judgement made this week, the High Court granted permission for the hospital to withdraw medical treatment, for Charlie to receive ‘palliative care only and [for him to] be allowed to die peacefully and with dignity’.

Within his judgement, Mr Justice Francis raised concerns about the lack of funding for the parents, commenting that it was ‘remarkable’ that they were not entitled to legal aid. Instead, they were fortunate to have been represented by a family solicitor and barrister who acted pro bono (for free). Neither of his parents have worked for the last eight months as they have been dedicated to Charlie. Mr Justice Francis went on to make a comparison with public law care cases where, for example, the Local Authority seek to place a child in foster care and where some get non-means tested legal aid. Compare this with Charlie’s parents who were (essentially) facing a matter of life or death and one ‘…can’t think of anything more profound than what the parents are facing’.

Other Judicial Comments

Unfortunately, such comments are not uncommon amongst the judiciary.

In a care case (Re D [2016]) in which Rebecca Stevens (Senior Associate in our Family team in Swindon) acted for a father with learning difficulties who faced the prospect of losing his son permanently, the proceedings were delayed because both parents struggled to obtain public funding. In the High Court, Justice Baker said ‘Because this father is working, and earns a very low wage from which he has contributed to the support of his family, he, and possibly the mother, are disqualified from legal aid… It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing’.

Sir James Munby, President of the Family Law Division, went on to comment on the ‘unedifying story of the battle these parents had to fight to obtain from a grudging state the assistance which was essential if justice is to be done’.

So, what is Exceptional Funding and what are the limitations?

When the provision for legal aid from most family law cases was removed by the Legal Aid, Sentencing and Punishing of Offenders Act in 2012, the Exceptional Funding (ECF) scheme was introduced.

In order to qualify for ECF, the following criterion is required:

1. You are not automatically entitled to legal aid for your case

Legal aid is only available in public law cases regarding the protection of children and private law matters involving domestic violence.

2, The merits test

You will need to show that you have a strong case and that the cost of providing you with legal advice is outweighed by the benefit you will gain from that advice.

3. The means test

You must show that you are financially eligible for legal aid. When considering an ECF application, the Legal Aid Agency will look at your disposable income and disposable capital.

4. Breach of your human rights

ECF is available where the lack of legal advice and representation would breach the individual’s rights under the European Convention of Human Rights. The overarching question is whether withholding public funding would mean that you are unable to present your case effectively and without obvious unfairness.

It’s easy to see how difficult it is to satisfy this criterion and the case law seems to reflect these difficulties.

Following Charlie Gard’s judgement, Bob Neil, Chairman of the Commons Justice Committee called for the rules surrounding eligibility for legal aid to be made more flexible and commented ‘to apply an ungenerous means test in effect without any regard to the nature of the case and evidence required isn’t fair’. Let’s hope that this advice is taken on board and changes are made sooner rather than later.