The High Court dismissed a father’s judicial-review challenge to the Legal Aid Board’s refusal to provide legal aid for a prosecution over an alleged breach of a child-access order. Mr Justice Noonan held that the proposed prosecution was criminal, not a civil proceeding covered by the Board’s statutory remit. He also concluded that the challenge had become moot after the father’s summons was struck out and later enforcement measures were introduced.
The father had received legal aid for earlier guardianship proceedings. In March 2015, the District Court made a five-year safety order against him and reduced his access to his son to one overnight period each weekend. He did not appeal within the stated 14-day period.
He later alleged that the child’s mother had failed to provide access on several occasions. After consulting solicitors, he sought to prosecute her under section 5 of the Courts (No. 2) Act 1986, which provides for a criminal offence where a person fails to comply with a qualifying custody or access direction. The Legal Aid Board’s solicitor told him that the Board could not act in a case involving a criminal element.
A summons was issued in June 2015. When it came before the District Court the following month, the parties agreed to a temporary variation of access arrangements for the school holidays, and the summons was not proceeded with. In September, the father’s solicitor sought an adjournment; the mother’s solicitor applied to have the summons struck out, and the District Court granted that application. No appeal or fresh summons followed.
The father argued that the prosecution was sufficiently connected to the earlier civil proceedings to qualify for legal aid, or that denying aid undermined effective access to court. The Board and the Attorney General argued that the statutory scheme covered civil cases only and that the claim was moot.
Mr Justice Noonan found that a section 5 prosecution is a separate criminal proceeding aimed at punishing an alleged offence. Any fine would be paid to the Exchequer, and the prosecution could be brought by someone who was not a party to the original civil case. Its connection to an access order did not bring it within the legal-aid provision for assistance connected with civil proceedings.
The judge also noted a temporary gap in access-order enforcement between the District Court’s loss of a contempt power in 2014 and new measures introduced by the Children and Family Relationships Act 2015. He said access complaints had in practice been addressed through applications to vary orders, for which civil legal aid was available. Because the father had chosen not to proceed with his summons and the later legislation provided enforcement measures, the requested relief would not resolve a continuing dispute. The application was dismissed.