The cost of saving your family

The Family Court

This is a blog about legal aid, but first I want to set out the facts of a case.

A few weeks ago, the Court of Appeal heard the case of M (A Child) [2018] EWCA Civ 240 in which a mother appealed against an order that would have permanently separated her from her five-year-old daughter.

The facts are that on the 23^rd October 2014 and on the 8^th May 2015 the mother administered to her daughter an epi-pen and subsequently called an ambulance reporting that her daughter was having an allergic reaction. On both occasions, the doctors at the hospital felt that the epi-pen had been unnecessary. It is worth saying that the mother is a qualified nurse who later accepted that she had over-reacted because her motherly concern for her child had overridden her medical training. In 2016, the local authority and mother would sign a threshold document agreeing that the mother’s error had in part been made because she was not aware of the severity of her daughter’s sleep apnoea. In fact, during the appeal it would transpire that the sleep apnoea was not discovered until after the child had been taken into care.

Following the second admission to hospital, meetings were held under the hospital’s Factitious and Induced Illness (FII) guidelines, which concluded with the mother being arrested on suspicion of fraud and neglect. I am at a loss as to what the arrest for fraud was about but ultimately experts in FII were engaged to prepare reports and concluded that the mother’s actions were simply those of an overanxious parent. Despite the arrest, no criminal charges were ever brought against the mother.

The local authority was not finished with the family there though and imposed a care plan requiring both mother and father to take part in the Incredible Years parenting course and for the mother to engage with therapists to address her anxiety issues. This broke down when the father decided to withdraw from the rehabilitation and from his daughter’s life altogether.

On the 11^th October 2016, Helen Freebody, a social worker, concluded that the mother could not meet the daughter’s needs and that the daughter should be permanently adopted away from her family. The Court of Appeal made this observation about that report,

“I note that the conclusions rely heavily (although not exclusively) on the advice of a Dr Sharon McKinnon from BRS (Building Resilience and Strength) who had been providing support to the foster carers. Dr McKinnon expressed her views having viewed a video of the recorded contact session but without having seen the mother. Dr McKinnon herself was clear the views were based on a very brief observation of part of a contact on 1 October and that she had not had sufficient time to review all the recorded contacts. Notwithstanding this, it seems clear to me that Dr McKinnon's suggestion that E and her mother would require lengthy therapeutic intervention substantially influenced the assessor's view that the mother will require intervention to "address her emotional misattunement with her daughter" and that such intervention would be "essential" before any reunification could be considered safely.”

I accept I am not qualified to comment on the weight that should be given to an opinion formed from viewing a video and not meeting those involved in a case, so I offer that snippet for you to make your own judgements.

When the local authority decided to permanently remove her small daughter the mother, unsurprisingly, sought to discharge the care order. The local authority responded with “a raft of assessments”, as the Court of Appeal described them, each of which highlighted the mother’s inability to understand and accept the necessity of her daughter having been placed in care in the first place. I accept again that I wasn’t there, but I have to say that being overly protective of one’s children seems an odd reason to deprive a child of its mother and vice versa, especially when one considers that the sleep apnoea that is said to have contributed to the mother’s misdiagnoses was not discovered until after the two incidents took place.

The case came to trial and, having heard the evidence, HHJ Hess approved the care plan to permanently remove the child from her mother and have her adopted into a new family.

The mother appealed on two grounds:

1.       HHJ Hess had failed to engage with the substance of the welfare checklist,

a.       Risk of harm in returning the child to her mother, and

b.       The child’s characteristics;

2.       The decision to remove was not proportionate to the risk of harm posed.

Without going into the details, the Court of Appeal found in the mother’s favour on both grounds.

Now we know about the case, we turn to what for me is the important point about this case: the costs.

Although this is a case in which mother and child face being separated from one another forever it turns out that legal aid was not available to her. In fighting to prevent her family being separated forever the mother ran up legal bills of £20,000 and the fight is not over yet because although they allowed the appeal the matter was sent back to the lower court for a rehearing, so the mother will have to find even more money or face fighting for her daughter alone.

Ahh I hear you say, but the mother won the appeal and the rule is that costs follow the event and that means that she can recover her costs from the local authority since they lost. But, this a family law case where that general rule does not apply. Instead costs are only recoverable in exceptional circumstances. The thinking behind this is that a parent should be able to bring a case to court in their child’s interest without fear of having to pay the other side’s costs if they lose. But this also creates a situation where parents of small or no means find themselves fighting the relatively wealthy local authorities. Costs will only be payable where there is evidence of reprehensible behaviour by the other side, S (A Child) [2015] UKSC 20. To make things clearer, Lord Phillips said in Re T (Costs: Care Proceedings) [2012] UKSC 36 that a deficiency in legal aid funding should not be made up out of the funds of local authorities.

When I see newspapers like the Mirror who hold themselves as out left-wing champions of the common folk using their front page to lambast legal aid as they did today with an all but dishonest headline about Worboys legal aid bill I despair. You see, politicians don’t care about legal aid because it doesn’t win them many votes. So, when national newspapers turn their wrath onto legal aid by highlighting how much one person cost the fund in multiple high-profile cases over more than a decade all it does is make people think that legal aid is a waste of their tax money. But, that’s dangerous – well it is if you’re poor or even just average, it’s quite good if you are very rich and might want to go to court against somebody of limited means – I say it’s dangerous because when politicians cull legal aid they aren’t taking from the rich nor are they aren’t taking from rich lawyers who are few and far between in legal aid. They are taking from the people who need help the most in our society. People who may have been accused of a crime but be totally innocent, such as Oliver Mears and Louis Richardson.  You are preventing ordinary people accused of relatively minor errors in judgement from using the law to stop their children being forcibly adopted away from them.

Some of you, cynics that you are, will no doubt be sitting there saying to yourselves, “he would say that because it’s how he earns a living.” You can sit easy in the knowledge that having handed my legal aid contract back in 2011, I have no dog in this fight… well except the dog that wants justice (and probably more bones to chew on) for everybody in society not just the richest.