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

This judgment will become final in the circumstances set out in Article 44 § 2 of the

Convention. It may be subject to editorial revision.

N.J.D.B. v. THE UNITED KINGDOM JUDGMENT 1

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.

2 N.J.D.B. v. THE UNITED KINGDOM JUDGMENT

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 Aracı Guido Raimondi

Deputy Registrar President

Case of n.j.d.b. v. the United Kingdom

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