Former president of the Family Division, Sir James Munby, has called for legal aid to be made available to respondents in cases in which allegations of domestic abuse are made by an applicant whose case is supported by legal aid (The crisis in private law
, Transparency Project, 10 February 2020). Any such grant of legal aid should also be subject to a means test, the former judge said.
In a wide-ranging speech on the problems within the family courts,1The speech was due to be given at the conference of Shared Parenting Scotland in Edinburgh on 10 February 2020, but Munby had been unable to attend.
Munby said: ‘The effect of LASPO,2Legal Aid, Sentencing and Punishment of Offenders Act 2012.
with its withdrawal of legal aid from most private law disputes, has been to make the family court an increasingly lawyer-free zone, with ever-increasing numbers of litigants having to appear unrepresented and without legal advice.’ In his view, a recent judgment in the High Court revealed ‘in painful detail and with profoundly distressing clarity’ the failings of the system.
JH v MF  EWHC 86 (Fam)
concerned an appeal against a decision of HHJ Tolson QC. Tolson’s judgment in the case was highly criticised by lawyers and campaigners, and prompted a letter of complaint
about his behaviour to the lord chancellor and others, signed by prominent family lawyers.3See Owen Bowcott, 'Family courts not safe for domestic violence victims, lawyers say', Guardian, 19 February 2020.
In Munby’s view, ‘the entire case was inevitably distorted by the fact that the woman had legal aid and the man did not’.
At the centre of the case were allegations of rape. Munby was critical of Tolson’s decision not to follow usual practice whereby screens are used to shield vulnerable witnesses from respondents, and to allow the respondent’s McKenzie friend to prompt him while giving evidence. ‘[W]orst of all,’ he said, ‘the judge’s whole approach to the issue of consent in the context of a history of coercive and controlling behaviour was astonishing.’
Cris McCurley, partner at Ben Hoare Bell and co-author of the letter to the lord chancellor, said: ‘The lack of expert identification of the existence of domestic abuse, and the impact of it on the victim and children, means victims feel unprotected in the family justice system.’
In addition to the call for the extension of legal aid, Munby’s speech listed over 20 measures to improve the family courts system, including better facilities within courts to separate vulnerable witnesses from other parties and ‘serious consideration’ to be given to a ticketing system analogous to the one that operates for judges in the criminal courts dealing with serious sexual offences.