Children Entitled to Legal Aid

Regina v Legal Aid Board ex parte W and others (The Independent 20 July CA)

Section 15 of the Legal Aid Act 1988 provides for the separate representation of a child in respect of certain proceedings which do not include applications for leave to a local authority to refuse contact between the parent and the child pursuant to s34(4) of the Children Act 1989. Accordingly the Board retains a discretion under that section whether or not to grant legal aid. However, s41 of the Children Act requires a guardian ad litem to be appointed on the making of an application under s34(4) and the Family Proceedings Rules 1991 require the guardian to appoint a solicitor who, with the guardian ad litem, will represent the child for the purpose of the specified proceedings. Insofar as there is a clash between the 1991 Rules and s15 of the 1998 Act, the Act has to take priority. The failure of the Area Committee to consider the position of the guardian ad litem and the obligatory appointment of a solicitor was so fundamental a flaw in the exercise of their discretion as to vicíate their decision. A legal aid manager or area committee should be very slow to find that there should be no grant of legal aid at all in such a case.