The mother had borderline learning difficulties; the father had an IQ of 50 but was in settled employment which meant that he could not avail himself of meanstested legal aid but could not afford to pay privately.

Apart from lack of legal representation, Sir James Munby noted inter alia the problem in funding “an intermediary, not merely in the court setting but also when meeting professionals out of court”. He stated that it was “unprincipled” and “unconscionable” for the parents not to be represented: “The State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought.”

“They are, at present, wholly dependant on the goodwill of members of the legal profession who, to their enormous credit, and acting in the highest traditions of the profession, are acting pro bono.” He reserved to a later hearing the question of deciding whether or not their costs should be borne by someone, though in a Postscript he noted that the situation in relation to legal aid had “moved on” but “not been resolved”.

In an earlier challenge over legal aid funding, Sir James ruled in Q v Q; Re B; Re C [2014] EWFC 31 that there “may be circumstances in which the court can properly direct that the cost of certain activities should be borne by HMCTS” but that “this is an order of last resort” which should not be made “except by or having first consulted a High Court Judge or a Designated Family Judge”.

Circuit Judge Louise Hallam noted in Re H [2014] EWFC B127 that the Article 6 rights of a mother with speech, hearing and learning difficulties had been breached: “I accept that not having legal aid would not prevent this mother from having physical access to a court but in her situation, in my judgement, she has undoubtedly been prevented from having intellectual access to this court.”

The Bar Council has called for urgent reform of Regulation 5 of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, SI 2013/480 to close this funding trap for families. Nicholas Lavender QC, Chairman of the Bar, said means-testing in care order cases should be scrapped: “Families being unable to challenge attempts made by a local authority or any other State agency to break up the family is not something you expect to see in a civilised society, but that is a consequence of the current rules, even if it is not what was intended. “Action must be taken swiftly to prevent it happening.”