CASE OF N.J.D.B. v. THE UNITED KINGDOM

FOURTH SECTION

CASE OF N.J.D.B. v. THE UNITED KINGDOM

(Application no. 76760/12)

JUDGMENT

STRASBOURG

27 October 2015

FINAL

27/01/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of N.J.D.B. v. the United Kingdom,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Guido Raimondi, President,
George Nicolaou,
Ledi Bianku,
Nona Tsotsoria,
Paul Mahoney,
Krzysztof Wojtyczek,
Yonko Grozev, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 6 October 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 76760/12) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, N.J.D.B. (“the applicant”), on 22 November 2012. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court).

2. The applicant was represented by Mr Andrew Smith QC, an advocate practicing in Edinburgh. The United Kingdom Government (“the Government”) were represented by their Agent, Ms I. Rao, of the Foreign and Commonwealth Office.

3. The applicant alleged, in particular, that the length of the child contact proceedings in his case resulted in a violation of his rights under Articles 6 § 1 and 8 of the Convention and that the refusal of legal aid to pursue an appeal to the Supreme Court violated his Article 6 § 1 rights.

4. On 2 September 2013 these complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1954 and lives in Hertfordshire.

A. The background facts

6. The applicant has a son, S., who was born in April 2000. The applicant was not married to the child’s mother, G., and the relationship ended a few months after S.’s birth. After the separation, S. continued to live with G. and the applicant maintained contact with him. On 17 August 2003 G. stopped the applicant’s contact with S.

7. In October 2003 the applicant instituted proceedings before Alloa Sheriff Court seeking parental rights and responsibilities and residence or, alternatively, residential contact.

8. In early July 2004 the applicant and G. agreed that the S. should reside with G. and that the applicant should have contact. The agreement was set out in a joint minute of agreement, on the basis of which the Sheriff Court, in an interlocutor dated 7 July 2004, granted the applicant parental rights and responsibilities in respect of S.; found that the applicant was entitled to residential and non-residential contact with S. on a basis and on dates specified in the interlocutor; and held that G. was to consult with the applicant when making decisions of importance with respect to the health, welfare, education and upbringing of S. The interlocutor did not provide for the dates upon which the regular contact was to begin or when during each four-week period it was to occur. It also failed to take into account pre-arranged holidays.

B. The domestic proceedings

1. The Sheriff Court

9. Because of the ambiguity in the interlocutor, the relationship between the applicant and G. quickly deteriorated. On 17 December 2004 the applicant lodged two minutes at the Sheriff Court: one to vary the July 2004 interlocutor by seeking a residence order in respect of S.; the other seeking a finding that G. was in contempt of court for breaching the July 2004 interlocutor. A curator ad litem was appointed by the Sheriff to represent S.’s interests.

10. The applicant was granted legal aid and was represented before the Sheriff Court by Mr Halley (counsel). The instructing solicitors were Jardine Donaldson.

11. Following a number of procedural hearings, a substantive hearing began on 9 September 2008 and concluded on 2 November 2009, after fifty-two non-consecutive court days.

12. The Sheriff’s decision on the application to vary the July 2004 interlocutor was issued on 22 January 2010. He considered that having regard to S.’s age, the history of the case and the influences at work on S., he would derive no benefit from contact in such circumstances. The Sheriff therefore concluded that there had been a material change in circumstances since the interlocutor of 7 July 2004; that it was in S.’s best interests that he did not have contact with his father; and that the interlocutor of 7 July 2004 required to be recalled.

2. The Inner House of the Court of Session

13. The applicant appealed to the Inner House of the Court of Session. He contested the Sheriff’s decision and complained, inter alia, that the action had not been concluded within a reasonable time.

14. The applicant was granted legal aid to pursue his appeal. He was represented before the Inner House by Mr Andrew Smith QC and Mr Halley (counsel). The instructing solicitors were Drummond Miller LLP, for Jardine Donaldson.

15. The Inner House delivered its judgment on 22 October 2010. It did not uphold the applicant’s appeal. However, it varied the January 2010 interlocutor to make it clear that it in turn only varied the July 2004 interlocutor in respect of contact but did not make any change to the finding that the applicant enjoyed parental rights and that he had to be consulted on matters concerning S.’s health, welfare, education and upbringing.

3. The Supreme Court

(a) Legal aid application

16. In November 2010 a note was prepared by counsel supporting an application for legal aid to pursue an appeal to the Supreme Court. On 2 December 2010 a full application for legal aid was submitted to the Scottish Legal Aid Board, with counsel’s note in support. Shortly afterwards an appeal to the Supreme Court was lodged and the appeal process was suspended pending the determination of the legal aid application.

17. The curator ad litem objected to legal aid being granted to the applicant. The applicant responded to the observations of the curator ad litem.

18. By January 2011 the legal aid application had not yet been determined. The applicant expressed concern about the delay and the impact it would have on his chances of contact being re-established with S. He was told that there would be no meeting of the committee charged with making the legal aid decision until 7 March 2011.

19. On 5 April 2011 the Scottish Legal Aid Board intimated its refusal of legal aid to the applicant. On 6 April 2011 the applicant lodged an application for internal review.

20. On 5 July 2011, after reconsideration, the Board again refused legal aid. It found that there was no substantive issue of law arising to merit an appeal and that no practical benefit to the applicant could ensue.

21. On 22 July 2011 the applicant’s counsel and solicitors considered commencing judicial review proceedings in respect of the refusal to grant legal aid. It was decided on the applicant’s behalf that, as the delay involved in judicial review was likely to be extensive and given that legal aid for judicial review proceedings would almost certainly not be granted, no judicial review proceedings would be commenced. Counsel and the solicitors were not prepared to act pro bono in judicial review proceedings since the prospects of success would be low. However, they agreed to act pro bono in pursuing the appeal before the Supreme Court without legal aid. The Supreme Court waived its fees in respect of the appeal.

(b) The appeal proceedings

22. The applicant was represented before the Supreme Court by Mr Andrew Smith QC and Mr Halley. The instructing solicitors were Jardine Donaldson.

23. On 23 May 2012 the court handed down its judgment. It refused to uphold the applicant’s appeal.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Children (Scotland) Act 1995

24. Section 1 of the Children (Scotland) 1995 Act (“the 1995 Act”) provides that a parent has “parental responsibilities” in relation to his child. To enable parents to fulfil their responsibilities, section 2 bestows upon them “parental rights”, including the right: (a) to have the child living with him or otherwise to regulate the child’s residence; (b) to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing; (c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and (d) to act as the child’s legal representative.

25. Under section 11(1) of the 1995 Act the court may make orders relating to parental responsibilities and rights. Section 11(7) provides:

“... [I]n considering whether or not to make an order under subsection (1) above and what order to make, the court—

(a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all; and

(b) taking account of the child’s age and maturity, shall so far as practicable—

(i) give him an opportunity to indicate whether he wishes to express his views;

(ii) if he does so wish, give him an opportunity to express them; and

(iii) have regard to such views as he may express.”

B. The Legal Aid (Scotland) Act 1986

26. The Legal Aid (Scotland) Act 1986 (“the 1986 Act”) makes provisions for legal aid in Scotland and established the Scottish Legal Aid Board. Pursuant to section 1 of the Act, the Board has the general functions of ensuring that legal aid is available in accordance with the Act and administering the legal aid fund.

27. Section 13 provides that civil legal aid is available in relation to civil proceedings in, inter alia, the Sheriff Court, the Court of Session and the Supreme Court. Sections 14 and 15 provide that, subject to financial eligibility conditions, civil legal aid is to be available to a person if the Board is satisfied that he has a probabilis causa litigandi (i.e. sufficient grounds for commencing legal action) and it appears to the Board that it is reasonable in the particular circumstances of the case that he should receive legal aid.

28. It is possible to seek judicial review of a decision of the Board and to apply for legal aid funding for the judicial review proceedings. Section 14(4) of the 1986 Act provides that where the Board has refused an application for civil legal aid sought for the purposes of raising an action against the Board, and the applicant has applied to the Board for a review of the application, then the Board must, unless it decides to grant the application forthwith, refer the application to the Sheriff for Lothian and Borders at Edinburgh.

29. In McAllister, Petitioner [2010] CSOH 112, the petitioner lodged a petition of judicial review of the Board decision refusing legal aid for the employment of junior counsel in a criminal trial before the Sheriff Court. The Court of Session upheld the petition and ordered the Board to reconsider the application for legal aid.

30. In EM, Petitioner [2011] CSOH 134, the petitioner contested a decision of the Board to refuse an increase in authorised expenditure for the purposes of instructing a parenting assessment report in child care proceedings. On an unknown date in late 2009/early 2010 she lodged an application for legal aid to seek judicial review of the refusal. Her application was refused. On 29 January 2010 she sought a review of the decision and on 19 May 2010 the matter was referred to the Sheriff Principal of Lothian and Borders. On 26 October 2010 he indicated that legal aid should be granted for the purpose of allowing the petitioner to obtain counsel’s advice as to the prospects of success of judicial review proceedings against the Board. A legal aid certificate was subsequently issued for judicial review proceedings. In the judicial review proceedings, on 19 August 2011 the Court of Session quashed the Board’s decisions refusing legal aid. Drummond Miller LLP acted as instructing solicitors for the petitioner in the case before the Court of Session.

31. In McGeoch, Petitioner [2013] CSOH 6, the petitioner sought judicial review of the refusal of the Board to award civil legal aid to enable him to challenge a refusal to include his name on the electoral register. His petition was partially successful.

C. The Human Rights Act 1998

32. Section 3(1) of the Human Rights Act 1998 (“the Human Rights Act”) requires legislation to be “read down” so far as possible in order to be interpreted compatibly with the Convention.

33. Section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

34. Section 7(1) provides that a person who claims that a public authority has acted in a way made unlawful by section 6(1) may bring proceedings against the authority.

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 8 OF THE CONVENTION IN RESPECT OF DELAY

35. The applicant complained that the proceedings were not concluded within a reasonable time. He relied on Articles 6 § 1 and 8 of the Convention, which read, in so far as relevant, as follows:

Article 6

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”

Article 8

“1. Everyone has the right to respect for his private and family life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

36. After the failure of attempts to reach a friendly settlement, by letter dated 3 March 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application.

37. The declaration began as follows:

“The Government of the United Kingdom accept that, in the particular circumstances of this case, there has been a breach of the ‘reasonable time’ requirement of Article 6(1) of the Convention in relation to the duration of the proceedings and of the procedural requirements implicit in Article 8.”

38. The declaration provided details of the steps taken to address the problem of the duration of proceedings in the civil courts in Scotland:

“As Lord Reed observed in the UK Supreme Court, the dispute in this case took so long to resolve ‘only because the court allowed the parties to determine the rate of progress’. Concrete steps have been and are being taken to address this. New Rules of Court were made in April 2013 providing for enhanced judicial case management powers in certain family cases, including cases involving applications for orders under section 11 of the Children (Scotland) Act 1995. Most of the changes were made to address concerns raised in the present case.

The Scottish Government has embarked upon a major programme of reform of the civil courts in Scotland. That programme of reform is directed inter alia to minimise problems with delay. It follows the Civil Courts Review, headed by Lord Gill, and mentioned by Lord Reed in the decision of the Supreme Court. In particular, the Review recommended: (i) that cases should, in general, be subject to judicial case management; (ii) that a docket system should be introduced, with a view to securing judicial continuity; and (iii) that there should be greater specialisation in the sheriff court, with one of the areas of specialism being family law.

The Scottish Government have consulted on the proposals in the Civil Courts Review. The Scottish Civil Justice Council (which will have the responsibility for keeping the civil justice system under review and for framing necessary rules of court) has been established. The Scottish Government have introduced into the Scottish Parliament the Courts Reform (Scotland) Bill, with a view to making the structural reforms proposed by the Civil Courts Review and allowing for formal specialization on the part of sheriffs.

At its first meeting, in June 2013, the Scottish Civil Justice Council established a Family Law Committee. The remit of that Committee is to consider the procedure to be followed in family actions and children’s referrals with a view to ensuring that such actions are dealt with as expeditiously as possible. The remit refers specifically to the Supreme Court decision in the present case. The Committee has already recommended that when an appeal is taken to the Inner House against an order made under section 11 of the Children (Scotland) Act 1995, it should be mandatory to seek urgent disposal of the case and Rules of Court have been made to implement this recommendation.”

39. The declaration concluded:

“In the particular circumstances of the applicant’s case, the Government offer to pay the applicant the amount of EUR 7,700 (seven thousand seven hundred euro) to cover any and all pecuniary and non-pecuniary damage arising from the breaches mentioned in paragraph 1 above, as well as costs and expenses and any tax payable, to be paid in pounds sterling into a bank account nominated by the applicant within three months from the date when the Court strikes out these claims pursuant to Article 37 of the Convention. The payment will constitute final settlement of the said claims.”

40. In his written observations, the applicant did not comment on the terms of the unilateral declaration. However, in the context of his submissions on just satisfaction, he cited this Court’s judgments in H. v. the United Kingdom (Article 50), 9 June 1988, Series A no. 136‑B, and P., C. and S. v. the United Kingdom, no. 56547/00, ECHR 2002‑VI, where substantially higher awards were made for non-pecuniary damage following the finding of a breach of Articles 6 § 1 and 8 in family proceedings.

41. The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application.”

42. The Court also recalls that in certain circumstances, it may strike out an application, or part thereof, under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the complaint to be continued.

43. To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, §§ 75-77, ECHR 2003‑VI; WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).

44. The present case concerns proceedings commenced by the applicant on 17 December 2004 (see paragraph 9 above). The proceedings ended with the judgment of the Supreme Court, handed down on 23 May 2012, in a second appeal by the applicant (see paragraph 23 above). The proceedings therefore lasted for seven years and five months altogether and the case was examined at three levels of jurisdiction.

45. The Court has established in a number of cases, including those brought against the United Kingdom, its practice concerning complaints of excessive delay in family proceedings brought under Article 6 § 1 and/or Article 8 (see, for example, W. v. the United Kingdom, 8 July 1987, Series A no. 121; H. v. the United Kingdom, 8 July 1987, Series A no. 120; and Glaser v. the United Kingdom, no. 32346/96, 19 September 2000).

46. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)). Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).

47. In the event of failure to pay within the three-month period stipulated in the partial unilateral declaration, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.

48. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, this part of the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE REFUSAL TO GRANT LEGAL AID

49. The applicant also complained that the refusal of legal aid to fund the appeal to the Supreme Court deprived him of equality of arms and effective access to a court. He relied on Article 6 § 1 of the Convention.

A. Admissibility

1. The parties’ submissions

50. The Government argued that the applicant had not exhausted domestic remedies in respect of this complaint since he had not sought judicial review of the refusal of the Scottish Legal Aid Board to grant legal aid for the proceedings before the Supreme Court. They insisted that such an application was both competent and offered reasonable prospects of success, citing various examples of where such proceedings had been taken including two cases in which the judicial review had been successful and one where the petition had been partially successful (see paragraphs 29-31 above). The applicant could have argued that the failure to provide him with legal aid for his appeal was incompatible with his Convention rights. Since the Board was a public authority, this would have been a ground for judicial review pursuant to the Human Rights Act (see paragraphs 32-34 above).

51. In so far as the applicant complained about funding for judicial review proceedings, the Government pointed out that the applicant could have applied to the Board for such funding (see paragraph 28 above). Any refusal was subject to an independent review by the Sheriff, a judge, pursuant to section 14(4) of the 1986 Act.

52. The applicant accepted that he could have sought judicial review of the decision by the Board to refuse legal aid but argued that he had a good reason for not doing so. He contended that the Government had failed to discharge the burden upon them to show that such an application had reasonable prospects of success and could be determined with reasonable speed. He explained that the grounds for judicial review were limited, being restricted (broadly) to errors of law by the decision-maker or the claim that the conclusion reached was manifestly unreasonable.

53. Further, a request for funding for the judicial review process would have had to go to the Board itself and the applicant’s counsel had advised him that the prospects of success in persuading the Board that their decision on the original application was either unlawful or manifestly unreasonable were verging on nil. Counsel had further advised that in the five years to February 2014, the Board had received ninety-seven applications for legal aid to judicially review its own decisions and had refused all of them. Moreover, applications could take many months to determine. Counsel had therefore decided on the applicant’s behalf that the prospects of success of an application for judicial review of Board’s decision were poor and that the prospects of obtaining legal aid for such an application were, in practical terms, nil. Both the applicant and his legal advisers were extremely concerned at the delay which had already occurred in the application for contact and the subsequent appeals processes. Further delay occasioned by legal aid applications and judicial review processes would have compounded that delay.

2. The Court’s assessment

54. It is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, amongst many authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV; Gough v. the United Kingdom, no. 49327/11, § 137, 28 October 2014; and and Vučković and Others v. Serbia (preliminary objection) [GC], no. 17153/11 and 29 other cases, §§ 69-70, 25 March 2014). However, the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up and that it must therefore be applied with some degree of flexibility and without excessive formalism (see Akdivar, cited above, § 69; Gough, cited above § 140; and Vučković and Others, cited above, § 76).

55. As stipulated in its Akdivar judgment (cited above, §§ 66-67), normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see also Gough, cited above § 138; and Vučković and Others, cited above, § 71).

56. As the Court also held in Akdivar (cited above, § 68), in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him from the requirement (see also Gough, cited above § 139; and Vučković and Others, cited above, § 77).

57. When deciding whether an applicant should be required to exhaust a particular remedy, the Court has held that mere doubts on his part as to its effectiveness will not absolve him from attempting it. However, an applicant is not required to use a remedy which, “according to settled legal opinion existing at the relevant time”, offers no reasonable prospects of providing redress for his complaint (see D. v. Ireland (dec.), no. 26499/02, §§ 89 and 91, 28 June 2006; and, more recently, Fox v the United Kingdom (dec.) 61319/09, § 42 20 March 2012). The threshold for a “special circumstances” dispensation is high, and the rule has been applied in cases when legal aid was not available to bring potentially costly national proceedings (see D. v Ireland, cited above; Cyprus v. Turkey [GC], no. 25781/94, § 352, ECHR 2001‑IV). It is an established principle, that in a legal system providing constitutional protection for fundamental rights, it is incumbent on the aggrieved individual to test the extent of that protection and, in a common law system, to allow the domestic courts to develop those rights by way of interpretation (see D. v Ireland, cited above, § 85).

58. The Court must decide in the present case whether the applicant did everything that could reasonably be expected of him to exhaust domestic remedies, and in particular whether he was required to seek judicial review of the refusal of the Board to award legal aid.

59. The Court observes, first, that judicial review proceedings are regularly pursued by applicants seeking to vindicate their Convention rights and form part of the array of ordinary remedies available in the national legal order. There is no doubt that such proceedings were possible in the present case to challenge the refusal by the Board to award legal aid (see paragraph 28 above). Second, it is clear that in the context of any judicial review petition, the applicant could have invoked his rights under Article 6 § 1 of access to a court and equality of arms, pursuant to the provisions of the Human Rights Act (see paragraphs 32-34 above). Third, the Government have provided a number of examples of judicial review petitions being lodged and have identified cases in which the petitions were successful (see paragraphs 29-31 above).

60. The applicant contested the efficacy of judicial review on two grounds: first, he argued that he would have been unable to obtain funding to pursue judicial review proceedings; and second, he contended that the proceedings would not have been conducted speedily. While he acknowledged that he could have sought funding from the Board, he explained that counsel had advised him that such a route did not offer any prospects of success.

61. As to his first objection, the Court notes – as the applicant accepts – that he could have sought funding for the judicial review proceedings from the Board (see paragraph 28 above). If funding had been refused, he could have requested reconsideration and the matter would have been referred to the Sheriff Principal, an independent judge. While the applicant referred to counsel’s advice to the effect that in the five years to February 2014, the Board had received ninety-seven applications for legal aid to judicially review its own decisions and had refused all of them, he did not provide details of the specific cases concerned and did not comment on whether legal aid funding was ultimately awarded following a review by the Sheriff. It is noteworthy that in EM, Petitioner, a challenge to a refusal to grant legal aid for the purposes of pursuing judicial review against the Board was successful, with the Sheriff indicating in October 2010 that in his view legal aid ought to be granted (see paragraph 30 above). The decision of the Court of Session in the judicial review proceedings was issued some ten months later, in August 2011. Throughout this same period, the applicant was pursuing his request for legal aid, and it is of some significance that his own instructing solicitors for the appeal before the Court of Session were also the instructing solicitors for the petitioner in EM (see paragraph 14 above).

62. As regards the applicant’s second objection – namely the potential for further delay – the Court accepts that there would inevitably be additional delay in pursuing judicial review proceedings against the Board and, potentially, in seeking funding for those judicial review proceedings. The Government did not comment on the likely timetable of such proceedings but in EM, Petitioner it appears that it took around nineteen months for the petitioner’s challenge to the refusal to grant legal aid to be determined (see paragraph 30 above). The Court is accordingly persuaded that, notwithstanding his failure to seek judicial review of the refusal to award legal aid, on account of the potential delay only and in the light of the fact that the proceedings at issue in the present case concerned contact with a child and had already been ongoing for a number of years, in the exceptional circumstances of the case, the applicant was dispensed by reason of “special circumstances” (see paragraphs 56-57 above) from his normal obligation to exhaust his available domestic remedy, as required by Article 35 § 1 of the Convention.

63. The Court is satisfied that the complaint raises arguable issues under Article 6 § 1 of the Convention, so that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further considers that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

64. The applicant accepted that there was no automatic right under the Convention to legal aid or legal representation in civil proceedings. However, he considered that in his case the assistance of a lawyer was indispensable for there to be effective access to a court. He pointed out that the case involved parental rights, a subject matter entailing an emotional involvement that was scarcely compatible with the degree of objectivity required by advocacy in court (referring to P., C. and S., cited above, § 89). He also emphasised what was at stake in the proceedings, the complexity of the procedure, the law and the analysis of factual material and his inability to represent himself effectively.

65. The applicant disputed the Government’s submission that it was an answer to an allegation of a breach of Article 6 § 1 that the applicant had fortuitously obtained pro bono representation. The logic of such an argument, he said, was that since the Faculty of Advocates operated a pro bono unit, no person with a valid case should ever be able to allege a breach of Article 6 for want of legal representation. It was unacceptable, in the applicant’s view, to expect a professional body to be the final-stop provider of services free of charge and to have that altruism relied upon by the Government to avoid an allegation of an Article 6 § 1 violation.

66. The applicant further argued that, as regards equality of arms, the provision of ad hoc pro bono legal assistance was no substitute for competent and sustained representation by an experienced lawyer familiar with the case and the relevant law (citing Steel and Morris v. the United Kingdom, no. 68416/01, §§ 69-70, ECHR 2005‑II). This was all the more important in his case where both G. and the curator ad litem had been granted legal aid. Thus the fact that counsel and solicitors acted for him pro bono in the proceedings before the Supreme Court did not remove the significant imbalance that existed between the parties. He emphasised, first, that he had no protection from an adverse costs order while the other parties to the appeal enjoyed such protection. Second, while court fees were waived, he was still required to present documentation in accordance with the relevant Practice Directions and did not have adequate resources to do so. The costs were met by senior counsel and his wife. Third, counsel had to fit their preparation for his case into their remunerating practice. Fourth, the applicant had to rely on additional assistance with the preparation of his case from senior counsel’s wife. Fifth, his legal advisers had to pay their own travel and subsistence fees in respect of the appeal before the Supreme Court in London. Finally, although the applicant had enjoyed the assistance of senior counsel, the latter had no experience in family law matters.

67. The Government argued that the refusal of legal aid for the applicant’s second appeal was not incompatible with his Article 6 rights. They accepted that denial of legal aid could, in certain circumstances, amount to a failure to ensure a fair hearing under Article 6 § 1. However, they pointed out that the Convention did not grant a general right to legal aid in civil cases: there was no obligation for States to make legal aid available for every civil dispute, and far less for multiple appeals. Having regard to the fact that resources were not unlimited, States could impose restrictions on legal aid. Such restrictions could validly be based on the prospects of success in the proceedings (citing Steel and Morris, cited above, § 62).

68. In the present case, they emphasised, there was a clear legal framework governing the grant of legal aid (see paragraphs 26-27 above). The applicant had received legal aid for the proceedings before the Sheriff Court and his first appeal to the Inner House (see paragraphs 10 and 14 above). Although he did not receive legal aid to pursue his appeal to the Supreme Court, he had nonetheless pursued the appeal with legal assistance. It was significant that the appeal before the Supreme Court was a second appeal and that the court waived its fees (see paragraph 21 above). The appeal was argued for the applicant by very experienced senior counsel supported by junior counsel and solicitors (see paragraph 22 above). It was noteworthy that the same legal advisers had acted for the applicant in the appeal before the Inner House, in respect of which legal aid had been granted. There was no suggestion that the applicant was prevented from arguing any ground of appeal because of the absence of legal aid.

69. The Government further contested the applicant’s argument that there had been a breach of the equality of arms principle. They reiterated that the applicant had been represented by very experienced counsel supported by junior counsel and his solicitors. In their view, if a litigant had lawyers who were willing to act for him pro bono, the absence of legal aid did not infringe the equality of arms principle. As to the fact that G. and the curator ad litem had been granted legal aid, the Government pointed out that the former had a judgment in her favour and it was reasonable for her to resist the further appeal and to obtain legal aid in order to do so; while the latter’s role was to protect the interests of the child and in was important that he continue in that role in the appeal before the Supreme Court.

70. Finally, the Government referred to the outcome of the appeal, which they argued vindicated the Board’s assessment of the poor prospects of success.

2. The Court’s assessment

(a) General principles

71. The Court reiterates that the Convention is intended to guarantee practical and effective rights. This is particularly so of the right of access to a court in view of the prominent place held in a democratic society by the right to a fair trial. It is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his case effectively before the court and that he is able to enjoy equality of arms with the opposing side. Article 6 § 1 leaves to the State a free choice of the means to be used in guaranteeing litigants the above rights (see Steel and Morris, cited above, §§ 59-60).

72. Since the right of access to a court is not absolute, it may be acceptable to impose conditions on the grant of legal aid based, inter alia, on the financial situation of the litigant or his prospects of success in the particular proceedings. Moreover, it is not incumbent on the State to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his adversary (see Steel and Morris, cited above, § 62).

73. As has been pointed out in previous case-law, the question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent himself effectively (see Steel and Morris, cited above, § 61).

74. Finally, regard must be had to the overall context, and in particular the extent to which the applicant has already enjoyed access to court and equality of arms in the proceedings. Article 6 § 1 and its “right to a court” (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18) cannot be interpreted and applied as investing litigants, including those involved in proceedings where fundamental aspects of the Convention right under Article 8 to respect for family life may be at stake, with an unqualified right to obtain legal aid in order to pursue their claim as far as they would personally want to. The Court must therefore examine the particular facts of the case, taking the proceedings as a whole, in order to determine whether the refusal of legal aid in relation to the applicant’s appeal to the Supreme Court denied him his “right to a court” as guaranteed by Article 6 § 1.

(b) Application of the general principles to the facts of the case

75. There can be no doubt as to the importance of what was at stake for the applicant before the national courts, since he was seeking contact with his child and the proceedings were determinative of the question of contact at that time.

76. The applicant argued that the relevant law and procedure were complex. The Government did not comment directly on the complexity of the proceedings. Having regard to the fact that the specific decision challenged by the applicant concerns an appeal before the Supreme Court, the highest civil court in the United Kingdom, the Court is prepared to accept that the legal issues and procedure involved were complex.

77. It is appropriate at this stage to consider the overall context of the proceedings about which the applicant complains. The present application concerns domestic family-law proceedings brought by the applicant before a first instance court, namely the Sheriff Court, and then pursued by him before two successive instances of appeal. At first instance he was granted legal aid and represented by junior counsel and solicitors, in proceedings in which the substantive hearing alone lasted no less than fifty-two non-consecutive court days (see paragraphs 9-11 above). He was likewise granted legal aid for his appeal to the Inner House of the Court of Session, being represented by senior counsel, junior counsel and solicitors (see paragraphs 13-14 above). It was only in relation to his appeal to the Supreme Court of the United Kingdom that, on reconsideration following a first refusal, he was denied legal aid by the Scottish Legal Aid Board (see paragraphs 19-20 above). The Board is an independent body charged with acting in the general interest in order to ensure that the limited amount of public money made available to the legal aid scheme is spent fairly and sensibly. When assessing the impact of the negative decision by the Board on the judicial “determination” of the family-law right asserted by the applicant, the Court cannot lose sight either of this general interest or of the fact that in the particular case the impugned denial of scarce legal aid funding came after the applicant’s claims had been thoroughly examined by the domestic courts at two levels of jurisdiction in proceedings in which the applicant had received legal aid and been represented by highly qualified lawyers.

78. Finally, it is of significance that the applicant was in any event legally represented by advisers and counsel, who had agreed to act pro bono, in the proceedings before the Supreme Court. The Court therefore has no doubt that the applicant was in fact effectively represented in the proceedings before the Supreme Court, notwithstanding the refusal of legal aid. Not only did he receive the assistance of both senior and junior counsel as well as solicitors, but the legal team was the same as had appeared in the proceedings before the Inner House (see paragraphs 14 and 22 above). The Court therefore does not accept that the refusal of legal aid resulted in the applicant’s being forced to accept legal representation by persons with inadequate experience of the kind of litigation in question. The facts of the case point to the conclusion that the applicant enjoyed before the Supreme Court legal assistance of his own choosing by a highly qualified team which was very familiar with his case.

79. It is further noteworthy that the Supreme Court waived its fees thus further facilitating the pursuit of the applicant’s appeal in the absence of legal aid (see paragraph 21 above). While the applicant points to the costs which nonetheless had to be borne by his legal team, it is not for the Court to concern itself with such private funding arrangements in the absence of evidence that they prevented an applicant from being able to present his case effectively before the court. It is true that there remained the possibility of an adverse costs order being made against the applicant in the Supreme Court. However, there is no indication that this risk impaired his ability to present his case in any way, nor has the applicant informed the Court that a costs order was ultimately made or enforced against him.

80. The Court concludes that, in the circumstances of his case, the applicant was not prevented from effectively pursuing his appeal to the Supreme Court, nor was he denied equality of arms, by reason of the refusal to grant him legal aid. It follows that, taking the family-law proceedings brought by the applicant as a whole, no denial of his “right to a court”, and thus no violation of Article 6 § 1 under its civil head, can be found in the present case.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Takes note of the terms of the respondent Government’s declaration in respect of the complaint concerning the delay in the proceedings under Articles 6 § 1 and 8 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

2. Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;

3. Declares the complaint under Article 6 § 1 of the Convention concerning access to legal aid admissible;

4. Holds that there has been no violation of Article 6 § 1 of the Convention by reason of the refusal to award legal aid in relation to the applicant’s appeal to the Supreme Court.

Done in English, and notified in writing on 27 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıGuido Raimondi
Deputy RegistrarPresident

 

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