Judicial concern about lack of legal aid - Re: K and H

26 Jan 2015

David Emmerson, partner at TV Edwards and chair of Resolution's legal aid committee, looks at how the judiciary are expressing their concern about the lack of legal aid post LASPO and ingenious ways of making legal aid available

RE: K and H (children: unrepresented father: cross examination of child) [2015] EWFC1

This is a Judgment by His Honour Judge Clifford Bellamy sitting as a Deputy High Court Judge on 5th January 2015.

It is a case concerning an application by a father to spend time under a child arrangements order with his two young children. The application is opposed by the mother because her eldest daughter from another relationship made a disclosure to her teacher that she had been sexually abused by the applicant father. The father denies the allegation and a Fact Finding Hearing has been scheduled. The mother is legally aided and the father is a litigant in person. The Judge was faced with two issues. First, who should cross examine the child, and secondly whether the court has power to order HMCTS to pay for the representation for the father limited to the cross examination. The Judge gave leave to the Lord Chancellor to intervene in the proceedings to make representations particularly on the second issue. The father’s case was that the elder child must give evidence and be crossed examined by him at the Fact Finding Hearing. Guidance on that issue is to be found in Re: W (children) (abuse: oral evidence) [2010] UK SC12. The court was also assisted by a short report by an experienced CAFCASS officer who determined that the child was competent and able to give oral evidence and indeed had declined the use of screens or a video link. However, the CAFCASS officer concluded that the court should appoint “an intermediary to cross examine (the child) if she is required to give oral evidence, as it would be extremely abusive for the father to do this and may cause (the child) emotional harm”. The Judge considered the guidance in Re: W and also the “guidelines in relation to children giving evidence in family proceedings” published by the Family Justice Council in December 2011. This focuses on the ways in which procedures and processes can be adopted in order to improve the quality of the child’s evidence and minimise the risk of harm to the child. The guidance specifically states that “17. A child should never be questioned directly by a litigant in person who is an alleged perpetrator…21. All advocates have a responsibility to manage the questioning of a child witness fairly, however the ultimate responsibility for ensuring the child gives the best possible evidence in order to inform the court’s decision rests with the tribunal…”. The Judge concluded that paragraph 17 assumes that a court has the power to forbid a party who wishes to conduct his own case from examining or cross-examining a witness. His Honour Judge Bellamy considered that it was unclear as to whether the court did have such power, but in this case it did not need to be determined because the father did not wish to cross examine the child directly but instead have legal representation in order to do so. He approached his Judgment on the basis that the father should not cross examine Y.

The judge considered what the alternatives were.

The judge considered the opportunities for a grant of legal aid under the “exceptional case determination” where the Legal Aid Agency may grant legal aid to a litigant in circumstances which otherwise would be out of scope. This provision is only available to those who are able to satisfy the usual needs and merits testing. In this case the father was not financially eligible for legal aid, although his means were modest. Therefore, an application for exceptional funding under Section 10 of LASPO could not be pursued. The judge then considered whether the father should pay for his own representation which was the submission on behalf of the Lord Chancellor. The judge concluded on the information available that the father’s income was so low that he could not afford to pay privately for legal representation. The father had been willing to pay for representation earlier in the proceedings and had spent over £2800 on legal fees, but could not continue doing so. The judge considered the availability of the Bar Pro Bono Unit, although in theory representation might be available the judge concluded that it could not provide assistance in every case where it is needed, nor would it be reasonable to expect it to do so. Counsel for the Lord Chancellor suggested that the problems in the case were essentially a case management issue and that either the court or the guardian (if there were one) should put questions on behalf of the father. The judge concluded that this was not a case where it would be appropriate to appoint a guardian on behalf of the children, and even if he did that it would be appropriate for the Guardian to cross examine the child on behalf of the father. As was determined in the case of H v L and R [2007] 2FLR 162 where Wood J acknowledged that there could be a number of circumstances where it would be inappropriate for the guardian to embark upon cross examination of the parents. The judge then went on to consider other measures, such as video link, screens, or advance judicial approval of any questions, having reaffirmed the position that a child should never be questioned directly by a litigant in person who is an alleged perpetrator.

The judge then considered a representation on behalf of the Lord Chancellor that an option in the case was for the judge to undertake cross examination of the witness and referred to the Practice Direction 12 J FPR 2010 dealing with child arrangements and contact orders: domestic violence and harm. Here the rules envisage the Fact Finding Hearing being “an inquisitorial (or investigative) process which at all times must protect the interests of all involved” and envisages a situation where the judge where “it is necessary” and appropriate to conduct the question on behalf of the witnesses and the parties. In Q v Q; re B; re C, Sir James Mumby at paragraph 76, whilst recognising that there may be many cases where it would be entirely unproblematic for the judge to conduct the questioning, but there may be “cases where the issues are…grave and forensically challenging…questioning by the judge may not be appropriate or indeed sufficient to ensure compliance with Articles 6 and 8.” Judge Bellamy concluded whether it would be appropriate for a judge to conduct cross examination would depend on the circumstances of each case, and in the one before him he concluded it would not be appropriate. In this case, the issue of whether the father had sexually abused the older child was fundamental to the Human Rights of all concerned, the mother, the father, the older child, and the younger children, that the father sought to spend time with. The judge recognised that judges question witnesses on a “daily basis” in the family court and that no one should suggest that this practice should stop or that it is incompatible with Article 6 or 8. However, the judge said “However, I am in no doubt that there are cases – of which I am satisfied that this is one – where cross examination by the judge is incompatible with Article 6 and 8 Rights of the respective participants and is therefore not appropriate”.

His Honour Judge Bellamy then turned his attention to Section 31 G (6) of the Matrimonial and Family Proceedings Act 1984, which in turn was considered by the President, Sir James Mumby, in the case of Q v Q; re B; re C [2014] EWFC 31. The provision is as follows:

“Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross examine a witness effectively, the court is to:

a) Ascertain from the other party that matters about which the witnesses may be able to depose or on which the witness ought to be cross examined, and;

b) Put, or cause to be put, to the witness such questions as in the interests of that party may appear to be proper”.

Judge Bellamy then considered specifically what the words “cause to be put to the witness” meant and referred back to the analysis by the President in Q v Q; Re B; Re C. Here the President looked at the principles set out in FPR 1.1 (1) in the overriding objective and the requirement for courts to act in a way which is compatible with Article 6 and 8 of the Convention on Human Rights. The President concluded that if questions had to be put to witness and these were not by a judge or one of the parties, then these questions must be put by an advocate. The President concluded at paragraph 79 that “in the ultimate analysis, if the criteria in Section 31 G (6) are satisfied, and if the judge is satisfied that the essential requirements of a fair trial as required by FPR 1.1 and Article 6 and 8 cannot otherwise be met, the effect of the words “cause to be put” in Section 31 G (6) is in my judgment, to enable the judge to direct that the appropriate representation is to be provided by – at the expense of –the court, that is at the expense of HMCTS”. The President made the point that Section 31 G (6) does give the court power to order HMCTS to meet the costs of representation, but it is a power that should be used sparingly, and that “no order of this sort should be made except by or having first consulted a High Court Judge or a designated family judge”.

Before Judge Bellamy, counsel for the Lord Chancellor argued that the President was plainly wrong in determining that Section 31 G (6) creates a power to grant funding for representation. That is a matter for Parliament and not for the courts, and that the President’s conclusion in paragraph 79 of Q v Q; Re B; Re C is an attempt to circumvent the will of Parliament.

Judge Bellamy did not accept this and referred to the President’s observations in Re Q where he made it plain that it was for Parliament to determine the scope of legal aid, but nonetheless such provision had to comply with Articles 6 and 8. Judge Bellamy noted that the HMCTS already provides assistance to litigants in person where appropriate to fund the preparation of Court bundles or interpreter services. And concluded that the instruction of an intermediary in the case is properly to be regarded as being an aspect of representation, but that such provision should be necessary, appropriate, and proportionate in order to safeguard convention rights and in order to ensure compliance by the Court with its duty to act in a way which is compatible with convention rights. Judge Bellamy concluded his Judgment with the following principles of approach:

a) It is the first duty of judge’s sitting in the family court to ensure the proceedings are conducted fairly (FPR 2010 rule 1.1). Failure to do so may lead the court itself acting unlawfully (Section 6 (1) of the Human Rights Act 1988).

b) Where a party is unrepresented (whether because legal aid is not available or by choice) and is “unable to examine or cross examine a witness effectively” the court has a duty to assist that party (Section 31 G (6) of the Matrimonial Family Proceedings Act 1984. This requires the Court to “put, or cause to be put, questions to a witness.

c) The court will itself put questions to a witness if it is satisfied that it is “necessary and appropriate” to do. It will not normally be appropriate to do so when the case involves issues which are grave and/or forensically complex.

d) Where the court is satisfied that it is “not appropriate” for the judge to put questions to an alleged victim, the court must arrange for (cause) a legal representative to be appointed to put those questions.

e) The court may direct that the costs of the legal representative be borne by HMCTS.

f) The court may nominate the legal representative who was to be appointed to undertake that tasks.

g) The extent of the work to be undertaken by legal representatives so appointed should be made clear at the outset and should be proportionate.

h) In those limited cases where legal aid is still available in private law children act proceedings there is a detailed regulatory framework governing the calculation of costs payable to (claimable by) a solicitor for undertaking such work. The fees payable by the Legal Aid Agency are less than the solicitor might charge a privately paying client for doing the same work. That has always been so. I can see no cogent argument for suggesting that a legal representative appointed by the court should be entitled to a higher rate of remuneration than if that work had been undertaken under the legal aid scheme.

Judge Bellamy therefore appointed a legally qualified advocate to cross examine the child on the father’s behalf, and the representation was to be limited to the cross examination.

It is not clear whether or not the Lord Chancellor has sought to appeal that decision.

This is the first case where a judge has considered and taken advantage of the proposition put forward by the President in Re: Q that in the circumstances HMCTS could fund litigation where legal aid under LASPO is not available.

These cases are part of a trend of cases where the senior family judiciary have examined the effect of how LASPO has dramatically reduced the availability of representation in the family courts, and considered the implications of this in relation to both Article 6 and Article 8 or all those involved in the proceedings, especially children. The circumstances in which the availability of funding by HMCTS would be appropriate is still in a relatively narrow band of cases, nonetheless the funding provision offers a genuine opportunity to ensure appropriate family justice.

Family lawyers need to be familiar with the analysis of both the President in Re Q and Judge Bellamy in Re K and H and be prepared to argue in cases where an alleged abuser is unrepresented firstly that it is not appropriate for the witness to be cross examined directly, and also the circumstances in which it is likely to be inappropriate for a judge to take over responsibility for the cross examination. The principles of approach set out in paragraph 74 a-h of Judge Bellamy’s Judgment are key and it should be noted that no order should be made unless the matter has been referred to a High Court Judge or a designated family judge.

Food for thought if nothing else.