The head of the family division has called on the justice secretary to intervene to resolve the 'impasse' reached in a case, to prevent a father's lack of legal aid disadvantaging a child.
In Q v Q, a father, a convicted sex offender with convictions for sexual offences against young male children, seeks contact with his seven-year-old son. The mother opposes the application and an expert's report suggests the child would not be safe in the father's presence.
Sir James Munby (pictured) said the father's lack of legal aid, which has left him unrepresented and unable to fund the attendance of the expert to challenge their evidence, makes it impossible to deal with the case 'justly and fairly as domestic and EU law demand'.
An MoJ spokesman said the case is 'complex' and 'requires careful thought'. He said the lack of representation has nothing to do with the legal aid reforms enacted through the Legal Aid, Sentencing and Punishment of Offenders act, but related to the Access to Justice Act 1999 which sets out the rules for the means and merits test.
He noted that the father's legal aid was terminated due to references in expert evidence that the child would not be safe in his presence, and an independent adjudicator upheld the decision to stop public funding.
Munby said the Family Procedure Rules dictate that the court is required to deal with this matter 'justly' and by ensuring 'so far as is practicable' that the case is dealt with 'fairly' and 'that the parties are on an equal footing'.
It is, he said, also the obligation of the court under Articles 6 and 8 of the European Convention on Human Rights.
Munby cited the 1979 case of Airey v Ireland (Application no 6289/73) (1979) 2 EHRR 305, in which the European Court of Human Rights said 'there could be circumstances in which, without the assistance of a legally qualified representative, a litigant might be denied' their Article 6 right to be able to present her case properly and satisfactorily.
'The question then is what is to be done because, on one view, we have thereby reached an impasse, which is unthinkable,' he said. 'This case raises, in quite an acute form, a problem which is increasingly troubling judges sitting in the Family Court at all levels.'
Munby suggested that either the mother, who is publicly funded, or the court itself foot the bill. He stressed: 'I am merely identifying possible arguments. None of these arguments may in the event withstand scrutiny. Each may dissolve as a mirage.'
But said: 'It seems to me that these are matters which are required to be investigated.'
Munby warned: 'There is the risk that, if one has a process which is not fair to one of the parents, that unfairness may in the final analysis rebound to the disadvantage of the child.'
He adjourned the case inviting the Ministry of Justice, or a minister to intervene in the proceedings to make such submissions as to who should fund the father's case.
'If [the MoJ] does not, I will have to decide the issues I have canvassed without that assistance,' he said.
The case in full.