Costs ruling in family court penalises those helping wronged parents

Since Sir James Munby stepped up last year to become head of our family courts, he has been making heroic efforts to restore sanity and justice to what had become an indefensibly secretive and dysfunctional system. His latest move, just when cuts in legal aid are forcing ever more parents to represent themselves, aided by unpaid legal advisers or “McKenzie Friends”, has been to issue new guidelines to ensure that this does not leave them seriously disadvantaged against the serried ranks of taxpayer-funded lawyers on the other side. But the latest recruit to his High Court team, Mrs Justice Ingrid Simler, has now issued a ruling that threatens to tilt the scales of justice against such parents more than ever.

Last September I reported the case of an American woman, crippled after being beaten up by staff in Holloway Prison, who was deported by the UK Border Agency, to be left in her wheelchair at Washington airport without money or a passport. She was originally imprisoned for taking her mildly autistic son from foster care, after social workers had removed him because they said he needed speech therapy which she thought unnecessary. Because she and her son had different names, after she changed hers to avoid detection for overstaying her UK visa, she was charged with having abducted someone else’s child, to which her state-funded barrister advised her to plead guilty. Although DNA tests later confirmed that she was the mother, it was this damning false allegation that led to her being beaten up. Photographs of the boy show how, after a year in “care”, her once happy, healthy son now looked lost, miserable and ill.

After being stuck for weeks at Washington airport, sleeping on benches because she had no money or the documents that would have allowed her to apply for accommodation or look for work, the mother was advised by friends in Britain, including Sabine McNeill and Belinda McKenzie, who run the Association of McKenzie Friends, to apply for a judicial review of her case, which an experienced lawyer told them was full of legal irregularities. Unable to return to the UK without a passport, she drafted a statement with the help of her advisers, which they presented to the High Court in December. A judge adjourned the hearing for them to “validate” their right to speak for her.

This month, however, when none of them could be present, Mrs Justice Simler ruled not just that their case was “totally without merit” but that the lay advisers were now considered to be “parties to the case”, and must pay more than £4,000 in court costs. They would have a chance to challenge this, but were told that, if the court found against them, their costs would be even higher. In effect, the judge was sending a warning to all such lay advisers that, by offering help to litigants, they now risk severe financial penalties if their case is lost. As John Hemming MP recognises, “if lay advisors are to be threatened with hefty costs merely for helping victims of a miscarriage of justice, then the rule of law is under threat”. This ruling appears so flatly to counter Lord Justice Munby’s latest attempt to achieve a fairer balance between lawyers paid by the state and those “McKenzie Friends” that it would be very interesting to know his view.