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

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 Franoise 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 applicants 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.

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A. The background facts

6. The applicant has a son, S., who was born in April 2000. The
applicant was not married to the childs 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 applicants 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 prearranged 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 fiftytwo non-consecutive court days.
12. The Sheriffs 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

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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 Sheriffs 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 applicants 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 counsels 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.

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21. On 22 July 2011 the applicants counsel and solicitors considered

commencing judicial review proceedings in respect of the refusal to grant
legal aid. It was decided on the applicants 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 applicants 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 childs residence; (b) to control, direct or
guide, in a manner appropriate to the stage of development of the child, the
childs 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 childs 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 childs 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.

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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 counsels 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 Boards decisions
refusing legal aid. Drummond Miller LLP acted as instructing solicitors for
the petitioner in the case before the Court of Session.

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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

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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 childrens 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 applicants 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 Courts judgments in
H. v. the United Kingdom (Article 50), 9 June 1988, Series A no. 136-B, and

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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 2003VI; WAZA Spka z o.o. v. Poland (dec.)
no. 11602/02, 26 June 2007; and Sulwiska 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
Governments 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.

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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 (Josipovi 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 applicants counsel had advised
him that the prospects of success in persuading the Board that their decision

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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 applicants behalf that the prospects of success of
an application for judicial review of Boards 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 Courts 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 1996IV;
Gough v. the United Kingdom, no. 49327/11, 137, 28 October 2014; and
and Vukovi 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 Vukovi
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

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11

accessibility and effectiveness (see also Gough, cited above 138; and
Vukovi 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 applicants
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 Vukovi 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,

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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
counsels 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 applicants 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 petitioners 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

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13

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 Governments 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 applicants 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

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

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 counsels 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
applicants 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 applicants 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
latters 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.

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

15

70. Finally, the Government referred to the outcome of the appeal,

which they argued vindicated the Boards assessment of the poor prospects
of success.
2. The Courts 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--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
applicants 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 applicants

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

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 nonconsecutive 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 applicants 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

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

17

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
applicants 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 applicants 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 Governments 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;

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

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 applicants
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.

Fato Arac
Deputy Registrar

Guido Raimondi
President