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Top judge issues direct challenge to government over legal aid

17th Aug 2014

Sir James Munby, one of the most senior judges in England and Wales, has issued a direct challenge to the government by authorising the courts to cover the costs of justice being served after recent cuts by the Ministry of Justice (MoJ) to legal aid funding.

Munby, president of the family division of the high court, has ruled that if the Legal Aid Agency refuses to provide lawyers, the court service should pay for them instead. This comes after a warning from divorce solicitors that the family court system is under threat due to a lack of representation for many clients.

This ruling is intended to cover three separate family cases involving fathers who wish to have a role in their child’s life having no access to lawyers who can argue for them, while the mothers have received public funding to pay for legal representation.

Munby added that the problems have been mostly worsened by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. As a result of the Act, representation in court cases has fallen significantly, while the number of cases where neither party is represented has drastically increased.

He has declared that in the three specific trials, the costs will instead have to fall to Her Majesty’s Courts & Tribunals Service. Unless the parties are represented, they may not be given the fair trial they are entitled to under article 6, and their private and family life could be at risk under article 8 of the European convention of human rights.

Munby notes, however, that this ruling was a last resort, and should not be made except by or having first consulted a high court or designated family judge.

The MoJ is considering the judgement, while Bill Waddington, chair of the Criminal Law Solicitors Association, stated that the decision showed any remaining support for Chris Grayling, Lord Chancellor and Secretary of State for Justice, has disappeared.