Child Care Solicitors

How Should They be Funded? The funding issues faced when resolving issues relating to the children of a murdered parent. By Omoye Egboh

Two recently reported cases represent a rise in cases where one parent has killed another. Although there are similarities in the facts and issues surrounding Re A and B (One Parent Killed by the Other) [2010] EWHC 3824 and Re T (A Child - Murdered Parent) [2011] EWHC 1185 (Fam) such as contact between the children and perpetrators (who in both instances were incarcerated), what is noticeably similar in each case is the potential lack of public funding for all parties to proceedings.

In another case of Re X (2010), the father killed the mother in front of the parties' two children who were both under the age of 10 at the time.

The father was convicted of manslaughter, due to diminished responsibility, and sentenced to 9 years in prison. Following their mother's death and father's imprisonment, the children moved into their maternal grandparents' home. An application for a special guardianship order was issued by the maternal grandparents in 2008, two years after their daughter's death. The grandparents were not financially eligible for public funding. Instead the local authority supported the grandparents' application with funding for the same capped at £5,000.

The father had initially instructed a solicitor, on a private basis, who agreed for two experts to report on the matter. A signed consent order had been submitted to the court in this regard although the issue of the identity and letters of instruction to the same remained live. The father's assets were eventually frozen through civil proceedings and he could no longer pay his legal team. Numerous letters were sent to the father, who was now acting in person, to agree the identity of the experts and letters of instruction but no response was received. An urgent directions appointment was therefore requested and this took place in September 2010.

The curriculum vitae of the two experts were provided to the court, together with draft letters of instruction, and Mr Justice Coleridge explained the content carefully to the father who was present at this hearing. The father gave his consent to the instruction of the experts and to the disclosure of a significant number of records, relating to father and the children, to the experts. The court timetabled the matter through to final hearing, listed for March 2011, along with two further directions hearings, an experts meeting, professionals meeting and pre-hearing review.

Due to the high number of hearings being listed, all in London, the local authority's fee cap of £5,000 was quickly reached. The grandparents made an application for public funding but since the matter involved private law proceedings, their application was subjected to means testing and was refused on the basis of their income. Although the grandparents' were employed, they had used all their savings in extending their home to provide adequate room for the children.

As both the grandparents and father were without funding only the children had the benefit of publicly funded legal advice. In order to pay for the expert reports, estimated at £35,000, the grandparents faced the prospect of using the children's CICA claim funds.

At a directions hearing in December 2010, the judge was informed of the funding situation and found the prospect of conducting the rest of this matter with only the children being legally represented unpalatable. He made comments requesting the Legal Services Commission to consider carefully whether to grant funding to the parties. Nevertheless, further applications were refused.

In January 2011, at a further directions hearing, counsel for the guardian referred to the reported case of Re A and B (One Parent Killed by the Other) (2010), where Mrs Justice Hogg provided guidance to establish a framework in order to avoid further significant harm which the children involved in such cases have already suffered, by poor management and unnecessary delay. This was clearly relevant to the case of Re X as lack of legal representation led to significant delays and the complexity of the issues required all parties to have the benefit of legal advice. Further, it was possible that the father would need to cross-examine his victim's mother.

In A and B Mrs Justice Hogg stated:

‘In all cases where one parent has been killed by the other the threshold criteria will be met. The local authority should give immediate consideration to the issue of proceedings and, whether it considers it appropriate or inappropriate to issue proceedings imminently, it should appoint a social worker specifically for the affected sibling group who should offer immediate and practical help and keep the decision under constant review in conjunction with the local authority's legal department.'

Further, she stated:

'In the aftermath of the killing there will be strong emotions on both sides of the extended family. It is not appropriate to leave the extended family to attempt to resolve matters through private law proceedings. In the event that the case comes before the court as private law proceedings in the first instance then the court should direct that a Section 37 report is prepared by the local authority.'

Applying the guidance provided, the judge agreed that the threshold should be automatically passed in cases such as these and ordered the local authority to prepare a section 37 report. Further, to make sure the children received all possible support available the judge made an interim supervision order. Since the proceedings now involved public law, the parties were automatically entitled to public funding which was granted in early 2011.


Given the government's confirmation, on 21 June 2011, of their decision to cut legal aid in certain family proceedings, most argue that it is inevitable that more disputes will be handled by litigants in person.

It appears that in cases where one parents kills another, if the Judge makes an order for interim supervision order and require the local authority to produce a section 37 report, following the guidance in A and B, then the proceedings will been public law and the parties will automatically be entitled to public funding.

Of course, the complex proceedings in cases where one parent kills the other lead to a significant number of hearings which can last for years. The timing of an interim supervision order will be vital because it will endure only until the section 37 report has been produced. The local authority may conclude there is no need for their involvement due to lack of welfare concerns. This was the case in Re X and, it appears, was also the case in Re T, evidenced by the local authority's support of the maternal aunt's application for special guardianship.

The court cannot compel the local authority to become involved with a family where they have concluded there are no welfare concerns. If the local authority concludes, in the section 37 report, that there is no need for their involvement this would be the end of the period of entitlement for public funding.

The requirement for the local authority to produce section 37 reports and to comply with a supervision order potentially costs the state as much in terms of finance, if not more in certain cases, than providing public funding at legal aid rates to enable the parties to be legally represented. The parties, if adequately funded, would have the benefit of legal advice which might prevent some matters from proceeding to court. A litigant in person is more likely to simply issue proceedings, regardless of their prospects of success, without legal advice. Further, appeals where parties do not have the benefit of legal advice are likely to increase.

Having cases such as Re T, A and B and Re X conducted by litigants in person where there is significant impact on the welfare of the children who are the subject of proceedings, and of paramount concern of the court, cannot seen to be right. Moreover, to have the person who killed the child's parent cross examine the deceased's relative, and perhaps carer of the child, can be seen to be insensitive.

It must be stressed that Mr. Justice Coleridge, in the case of Re X, made it clear that he did not order an interim supervision order and section 37 report "as a device to obtain public funding". He considered the welfare of the children in the case before him and concluded that the maternal grandparents needed the local authority's assistance. Since the children had witnessed their mother's murder at the hands of their father, they required a significant amount of counselling and professional input. Both grandparents worked full-time and could not afford to stop working.

Mr Justice Coleridge followed guidance provided in A and B and it was right that he made this order in this case. However, the government may find that more cases follow in the footsteps of Re X due to the proposed reforms to legal aid.

Although these are extreme cases, the judiciary has made it clear that parties to similar cases need to be legally represented. The welfare of the child is the court's paramount concern within proceedings. It appears the government may need to consider this principle and revisit their decision not to provide public funding for private law cases in the future.