Facts
The parties are the unmarried and separated parents of a son born in 2017. The mother (appellant, represented by counsel) initiated conciliation proceedings on 8 May 2019 before the Justice of the Peace's Office [V.] and claims child maintenance from the father.
By submission of 15 May 2019, the mother applied to the District Court [U.] for free legal aid and legal representation for the conciliation proceedings. The District Court considered the conciliation request hopeless due to the mother's lack of active standing and dismissed the application on 7 June 2019.
The appeal lodged against this to the Higher Court of the Canton of Zurich, II Civil Chamber, was unsuccessful by decision of 10 July 2019. The Higher Court likewise held the request to be hopeless, in particular because the appellant had not shown whether and in what amount the father was already paying maintenance, and because procedural standing outside family law joint proceedings is inadmissible.
By civil law appeal, alternatively subsidiary constitutional appeal, of 5 August 2019, the mother appealed to the Federal Supreme Court and requested free legal aid and legal representation for the conciliation proceedings and all prior proceedings, as well as for the federal proceedings. The lower courts waived submission of responses.
Considerations
The civil law appeal is admissible, since it concerns a decision of a last cantonal instance (Art. 75 para. 2 FSCA) on free legal aid, which as an interlocutory decision may cause irreparable harm (Art. 93 para. 1 let. a FSCA). Under the principle of the unity of proceedings, the main proceedings sought in the conciliation proceedings are decisive; child maintenance is a civil matter whose amount in dispute is met (Art. 72 para. 1, Art. 75 para. 1 let. b, Art. 51 para. 4 FSCA).
Under Art. 117 let. b CPC and Art. 29 para. 3 Cst., a person is entitled to free legal aid if they do not have the necessary means and their request does not appear hopeless. Requests are hopeless if their prospects of success are considerably lower than the risk of loss. The assessment is made prima facie and summarily, based on the circumstances at the time the application is filed. In conciliation proceedings, the decisive factor is the prospect of success of the request on its merits, and not the prospect of reconciliation.
The lower court incorrectly held that the appellant had not shown whether the father was paying maintenance. However, the appeal expressly shows that the father is not making any payments. This finding of the lower court is manifestly incorrect, and the reasoning based on it is untenable.
The lower court also denied the admissibility of the mother's procedural standing in her own name on behalf of the child. Based on Art. 318 para. 1 CC, the Federal Supreme Court has recognised in BGE 136 III 365 E. 2.2 and 142 III 78 E. 3.2 that the holder of parental authority is entitled to assert the child's rights in property matters, in particular maintenance contributions, in their own name. In free legal aid proceedings, contested legal questions going to the merits may not be decided in advance and authoritatively. A party who can rely on officially published Federal Supreme Court case law has prima facie the law on their side. A request cannot be declared hopeless on the…