Senior family judge warns on separate representation before Court of Appeal

The new President of the Family Division has hit out at the separate representation of parties in care proceedings who stand together in the same interest before the Court of Appeal.

The case of Re TG (a child) [2013] EWCA Civ 5 involved an appeal over a case management decision refusing a father permission to instruct a biomechanical engineering expert in care proceedings. 

Sir James Munby stressed that he was not criticising those lawyers involved in the case, as the issue [of separate representation] was not explored at the hearing.

However, he warned that “in future those in such a situation may find themselves having to explain their position”.

The President acknowledged that the ultimate safeguard for the parent faced with the might of the State remained “the fearless advocate bringing to bear in the sole interests of the lay client all the advocate's skill, experience, expertise, dedication, tenacity and commitment”.

He added: “There are some principles that ring down the centuries, and the efficacy of the adversarial process is one of them…..Most family judges will have had the experience of watching a seemingly solid care case brought by a local authority being demolished, crumbling away, at the hands of skilled and determined counsel. So the role of specialist family counsel is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented.”

The judge continued: “May there never be wanting an adequate supply of skilled and determined lawyers, barristers and solicitors, willing and able to undertake this vitally important work.

“Yet this is all funded out of the public purse, as it must be if there is to be equality of arms between the citizen and the State. And the public purse is not limitless, least of all in these times of financial stringency. We cannot allow scarce public resources to be frittered away and squandered.”

Sir James said that every £100 of public money spent paying for the separate representation of litigants in family cases who did not require to be separately represented was £100 unavailable to pay for representation which was required.

“If money is allowed to leach away in this way, the consequence will inevitably be, sooner or later, a reduction in the levels of remuneration,” he warned. “That cannot be in the interests of those, often frightened and disadvantaged in so many ways, who find themselves in an unfamiliar situation, critically dependent upon their advocates and other legal representatives.”

The President suggested that “not for the first time” the court was dismayed by what appeared to be the separate representation of parties who, whatever the position below, in the Court of Appeal stood together in the same interest.

“The question for us was simple and binary: Should the appeal against [the judge’s] order be allowed, or should his order stand? On that issue….. the mother stood behind the father's appeal and the children's guardian supported the local authority in resisting the appeal.”

Sir James continued: “In each instance, so far as could be seen, the position before us of the supporter was indistinguishable from that of the main protagonist. Yet we had before us four counsel, and no doubt four solicitors, when it might be thought that two of each would have sufficed – and all this at public expense.”

The President highlighted how almost 20 years ago, in Birmingham City Council v H (A Minor) [1994] 2 AC 212, 217, the House of Lords “made some very pointed comments which seem to have had little effect”.

“More recently, it is a matter on which the then Master of the Rolls expressed himself strongly in Oxfordshire County Council v X, Y and J [2010] EWCA Civ 581, [2011] 1 FLR 272, paras [44]-[50]. I draw the attention of the profession to what Lord Neuberger of Abbotsbury MR said in a passage which is too long to quote but which should be required reading for every family practitioner. Included in what the Master of the Rolls said was this (para [45]):

'We take this opportunity to emphasise in the strongest possible terms that it is only where it is clear that there is an unavoidable conflict of interest, as a matter of law, between two parties in the same interest that they should have separate legal representation, especially where public money is involved.'"

Sir James added: “He [Lord Neuberger] went on (para [48]) to refer to the possibility of parties confining themselves to written representations and (paras [47], [50]) to warn of the adverse costs consequences that might follow in cases where legal representation is unnecessarily duplicated.

“That was said in May 2010. Experience since then suggests that the warning has, too often, fallen on deaf ears. This must stop. The profession must take heed. So too, if I may say so, should the relevant professional bodies.”