The Court of Appeal has dismissed an appeal by an anonymised applicant who sought civil legal aid to pursue a prosecution over an alleged breach of a child access order.
In a judgment delivered on 19 December 2018, Mr Justice McGovern said proceedings under section 5 of the Courts (No. 2) Act 1986 were criminal in nature. They were not “ancillary to or in connection with” the family law proceedings for which the applicant had received civil legal aid.
The applicant argued that a section 5 prosecution was a means of enforcing family court orders and was therefore connected to those proceedings. The court rejected that argument, finding that the prosecution’s purpose was to punish a breach, rather than provide a direct remedy to the person who brought it. The fact that evidence needed for a prosecution might arise from family proceedings did not make the criminal case connected to them in the sense required by the Civil Legal Aid Act 1995.
The judgment said the section 5 provision described an offence and allowed a fine or imprisonment on summary conviction. A court rules form’s placement under a heading for civil proceedings did not change the criminal character of the statutory prosecution.
The applicant also claimed that refusing legal aid breached his constitutional and European Convention on Human Rights rights. The Court of Appeal found no denial of effective access to the courts. He had received legal aid for custody and access matters and had been able to apply for further orders. The court noted that he was the complainant in the proposed prosecution; the person accused would face any criminal sanction.
The appeal arose from a High Court decision dismissing the applicant’s judicial review challenge, related claims for declarations and a damages claim. Although a section 5 summons had issued, the prosecution did not proceed after the applicant and his partner reached an agreement on access during summer 2015. The summons was struck out, and the applicant later settled the dispute through a variation order under section 11 of the Guardianship of Infants Act 1964.
The Court of Appeal agreed with the High Court that the case was moot: by the time the judicial review was heard, no live dispute remained, and legal aid for a prosecution that did not proceed would have served no purpose. It also noted that the Children and Family Relationships Act 2015 had introduced other routes to seek enforcement orders, with civil legal aid available subject to a means assessment.
The court agreed with the High Court’s conclusions and dismissed the appeal.