Funding of Litigants through Ministry of Justice: Court of Appeal applies the brake

The decision of the Court of Appeal  on 22 May 2015, in Re K & H (Children) [2015] EWCA Civ 543, reversed the decision of Clifford Bellamy in Re K & H (Children: Unrepresented Father: Cross-Examination of Child) [2015] EWFC 1 and disapproved various decisions of the President.

This case focussed on the principle of whether the court could order HMCTS to fund legal representation in the absence of legal aid.

The Court of Appeal held that the judge had no power to make the order made and therefore allowed the appeal.  The Court found that "it is not possible to interpret either section 1 of the Courts Act 2001 or section 31G(6) of the Matrimonial and Family Proceedings Act 1984 as giving the court the power to require the Lord Chancellor to provide funding for legal representation in circumstances where such funding is not available under a scheme as detailed and comprehensive as that which has been set up under the Legal Aid and Sentencing and Punishment of Offenders Act 2012.  The court must respect the boundaries drawn up by Parliament for public funding of legal representation.

Complex Financial Remedy Cases at the Central Family Court FRU

The Financial Remedies Unit at CFC has issued guidance in respect of cases which will be accepted at the CFC FRU together with a form which needs to be completed.

Certificate of Financial Complexity

 

In the Family Court

In the Financial Remedies Unit of the Central Family Court

 

The marriage of				1. Outline background
[Applicant]				a. Date of Marriage			[Date]
and
[Respondent]				b. Date of Separation			[Date]
c. There are	[Number]		children of the family.
Please provide dates of birth of any children.
d. The Petition / Answer [delete as appropriate] was issued on							[Date]
at Bury St Edmunds Divorce Centre
Other court [please state]			[Name of issuing court]
and given case number
[Case Number]
e. The Decree Nisi was pronounced on					[Date]
f. The Decree Absolute was granted on					[Date]
g. There is / is not [delete as appropriate] a dispute about the jurisdiction of the Family Court. The reason for the dispute is:
Please provide brief reasons.
[Name]			Counsel / Solicitor for the Applicant/Applicant
Signature
[Name]			Counsel/Solicitor for the Respondent/Respondent

 

I/We certify that this application should be allocated to the Financial Remedies Unit of the Central Family Court because it is a case of such complexity that is appropriately dealt with in a Specialist Financial Court for the reasons stated overleaf.

Explanation of Complexity Issues

 

Delete/complete as appropriate

 

1. The assets in this case are currently estimated to be in the order of:
	a. Under £1 million
	b. £1 - £3 million
	c. £3 - £10 million
	d. Over £10 million
If the assets are in categories a., b. or c., please identify reasons as below why the case should be heard at the FRU and is not appropriate for hearing at a local hearing centre.
A. Potential allegations/issues may arise which include: [please tick all that apply]
	(1) Complex asset structures				(7) Expert accountancy evidence will be required
	(2) Complex income structures				(8) The parties’ respective contributions.
	(3) Non disclosure of assets				(9) There are/may be disputed allegations of “obvious and gross” conduct.
	(4) Assets are / were held through the medium of offshore trusts / settlements or otherwise held offshore or overseas				(10) There are substantial arguments concerning the illiquidity of assets.
	(5) Assets are/were held through the medium of family/unquoted corporate entities.				(11) There may be substantial arguments about:-which assets are “matrimonial assets” or “non matrimonial assets”
	(6) The value of family assets, trust and/or corporate entities.				(12) The application involves a complex or novel legal argument.
B. Any other reason why the case has the appropriate degree of complexity
	Yes
C. In respect of all Answers ‘Yes’ to A(1)-(12) or B please give brief details

 

Guidance Note: Financial Remedies Unit at the Central Family Court

 

The Financial Remedies Unit (FRU) is a specialist unit within the Central Family Court. It currently comprises seven full time courts conducted by specialist financial judges. It is headed by His Honour Judge Martin O’Dwyer.

 

1              Administratively it is supported by dedicated FRU staff and clerks who deal with all issuing, listing and drawing orders in Financial Matters.

2              The purpose is the efficient handling of complex financial cases.

3              The overriding criterion for a case being retained in FRU is complexity, i.e. is a case of such complexity that it is appropriately dealt with in a specialist financial unit.

4              The FRU has a number of internal procedures for the efficient managing of financial cases and an Enforcement Unit headed by DJ Robinson in cooperation with the Legal Advisers.

5              The contact email address is cfc.fru@hmcts.gsi.gov.uk.

 

Bury St Edmunds Divorce Centre

6              All Forms A subject to the following should will be issued at Bury St Edmunds (BSE) Divorce Centre or other Divorce Centre and allocated to the appropriate Family Court centre on a local court basis.

 

Issuing at CFC

7              Forms A may be issued directly in FRU at the Central Family Court upon completion of the Certificate identifying the appropriate level of complexity.

8              If it appears on the face of the Certificate that the criterion of complexity is or may not be met the matter will be referred to a judge of FRU who may decide to return the application or to refer the Form A to BSE for allocation on the appropriate local court criteria or to list the matter up to First Appointment in FRU.

9              Cases inappropriately issued in FRU which have to be referred to BSE may be subject to delay as the matter is transferred between courts. Similarly those whose first appointment is listed in FRU when the matter is not appropriately retained may suffer delay as the matter is then transferred to the appropriate local family court.

10           Transfers between courts

a.    To FRU.  Any family court may transfer cases to FRU where by reason of complexity or other good reason it is not convenient to retain the hearing in the local family court.

b.    From FRU. Nothing in these procedures is intended to restrict the judicial decision as to appropriate venue and FRU will liaise with other family courts for the efficient conduct of judicial business.

11           Petitions and Forms A may be issued at the CFC and other Family Court Centres in addition where

a.    There is a jurisdictional “race” between issues between competing jurisdictions

b.    Urgent relief is required e.g. freezing orders

Such applications once issued and the urgent matters dealt with, the normal test of rules of complexity or locality should determine venue.

 

HHJ Altman, Senior Designated Family Judge for London

Rachel Jones, Operations Manager, Central Family Court