Legal Aid for committal proceedings

Munby P granted criminal legal aid to the alleged contemnor in respect of committal proceedings within Hague Convention proceedings on 6th March 2014. In doing so he referred back to his earlier judgment in Chelmsford County Court-v-Ramet [2014] EWHC 56 (Fam) delivered on 22 January 2014 http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Fam/2014/56.html&query=Ramet&method=boolean In that case he said "I turn to legal aid, public funding. In Re Jennifer Marie Jones [2013] EWHC 2579 (Fam), para 43, I referred to what, as I was told, seemed to be the limited availability of public funding in contempt cases. Whatever the limitations of civil funding, public funding in contempt cases is available under the criminal scheme. The key provision is regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013, SI 2013/9, which says: "The following proceedings are criminal proceedings for the purposes of section 14(h) of the [Legal Aid, Sentencing and Punishment of Offenders Act 2012] (criminal proceedings) – … (v) any other proceedings that involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention on Human Rights." The effect of the decision of the Court of Appeal in Hammerton v Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 1133, is that this covers all proceedings for contempt of court, whether criminal or civil in nature and whether arising in the context of criminal, civil or family proceedings." It is therefore possible to obtain criminal legal aid for an alleged contemnor even if they are not eligible on means or merits or scope for the main family proceedings in connection with which the alleged contempt occurred. Anyone representing an Applicant on committal should draw this to the attention of the alleged contemnor and of the court to ensure that the committal process is Article 6 compliant. If that is not done there must be a risk that any contempt finding will be susceptible to appeal on the basis of serious procedural irregularity within CPR 52.11(3).

Radical Islam and Care Cases

The issue of whether the personal politics or religion of a parent might form the basis for the removal of a child from, their care has ben considered by the courts in recent times. It seems to me that it is only where those religious or other views translate into views or behaviour in the child which manifest themselves in the child’s daily life such that the child’s functioning in her school/community is seriously impaired so as amount to a significant impairment of development that the threshold would be met. Or perhaps where a real and identifiable risk of the child being radicalised to the extent that they will expose themselves or be exposed to the risks of involvement in acts of violence that the threshold could be crossed. In Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, Hedley J said “society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent”; and that “significant harm is fact-specific and must retain the breadth of meaning that human fallibility may require of it” but that “it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy”. The Supreme Court agreed with Frank Feehan QC that “many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or ‘model’ them in their own lives but those children could not be removed for those reasons.” A child can only be removed if the court is satisfied that the child is suffering or is likely to suffer significant harm and that the harm or likelihood of harm is attributable to the care given to the child not being what it would be reasonable to expect a parent to give. A likelihood of significant harm means no more than a real possibility that it will occur but a conclusion to that effect must be based upon a fact or facts established on a balance of probabilities. (in In re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9, [2013] 2 WLR 649) By section 31(9), “harm” means “ill-treatment or the impairment of health or development...” and “development” includes “emotional...development”. The word “significant” is not defined but section 31(10) Children Act 1989 provides that “Where the question of whether harm suffered by a child is significant turns on the child’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child.” So whereas the concept of “ill-treatment” is absolute, the concept of “impairment of health or development” is relative to the health or development which could reasonably be expected of a similar child. In Re C and B (Care Order: Future Harm) [2001] 1 FLR 611, Hale LJ said, at para 28, that “a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not”. It is difficult to see how radicalisation per se could be ill-treatment. It could be that a sufficient degree of radicalisation would impair the child’s ability to function in his or her society and one could see how specific risks or harm could arise if the radicalisation progressed to involvement in acts which involved the use of or exposure to a risk of violence. Unless it reaches that level of risk or of harm though it would seem that removal of children would simply be a form of religious discrimination and societal conditioning. I don’t subscribe to the view that our society is so fragile that we cannot cope with radical religious or other views nor that a healthy democracy should contemplate interference in families whose views we disagree with.