Re K and H (Children: unrepresented father: cross-examination of child)



Citation: [2015] EWFC 1

Summary

This judgment concerned the provision of legal aid for legal representation limited to cross-examination.

The proceedings related to M and F’s two children, K and H. M’s other daughter (Y) alleged that she had been sexually abused by her F. F denied those allegations. The court needed to consider F’s future contact with K and H. M was legally aided whereas F was a litigant in person because F was financially ineligible for legal aid. There were two issues in respect of F’s representation:

  1. Who should cross-examine Y – the victim of F’s alleged sexual abuse?
  1. Did the court have power to order Her Majesty’s Courts and Tribunals Service (HMCTS) to pay for legal representation for F limited to cross-examination?

The judge considered that it would be wholly inappropriate for F to cross-examine Y himself. Y’s allegations of sexual abuse against F were pivotal to determining the welfare issues. Where a party is unrepresented, HHJ Bellamy held, the court has a duty to assist that party and the court will itself put questions to a witness if it is satisfied that it is ‘necessary and appropriate’ to do so. It was not appropriate for the judge, who must determine the facts, to cross-examine the key witness upon the reliability of their evidence on which the fact finding exercise so heavily depends. Cross-examination by the judge would be incompatible with the Art 6 and 8 ECHR rights of the respective participants.

The judge held that whilst the legal aid scheme provided a single, comprehensive, unitary code for the funding of litigation, the comprehensive nature of the scheme did not preclude the State from providing, or the courts from requiring the State to provide, aspects of ‘representation’ where it was necessary, appropriate and proportionate in order to safeguard Convention rights. The judge set out the following principles for cross-examination where the litigant is in person:

“74 The following principles of approach emerge from the discussion above:

  • It is the first duty of judges sitting in the Family Court to ensure that proceedings are conducted fairly (FPR 2010 rule 1.1). Failure to do so may lead to the court itself acting unlawfully (s.6(1) of the Human Rights Act 1998).
  • 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 (s.31G(6) of the Matrimonial and Family Proceedings Act 1984). This requires the court ‘to put, or cause to be put’ questions to a witness.
  • The court will itself put questions to a witness if it is satisfied that it is ‘necessary and appropriate’ to do so. It will not normally be appropriate to do so when the case involves issues which are grave and/or forensically complex.
  • 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.
  • The court may direct that the costs of the legal representative be borne by HMCTS.
  • The court may nominate the legal representative who is to be appointed to undertake that task.
  • The extent of the work to be undertaken by a legal representative so appointed should be made clear at the outset and should be proportionate.
  • In those limited cases where legal aid is still available in private lawChildren 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 a 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 were undertaken under the legal aid scheme.”

Comment

The approach set out in this judgment is potentially welcome news for litigants before the Court of Protection suffering under the heavy burden of continued cuts to legal aid.  Although limited to ‘an order of last resort’, the judge was absolutely clear that, in his judgment, the court possessed the power to direct that the cost of certain activities should be borne by HMCTS.

The court could therefore direct that funding be provided for activities that fell within the scope of legal aid, even where the litigant was in fact ineligible for legal aid. The test was whether the work is “necessary, appropriate and proportionate” in order to safeguard Convention rights.

The question for those appearing before the Court of Protection, in which issues of similar gravity of those before HHJ Bellamy may well arise, is whether that the principles derived in this case can be applied directly notwithstanding the absence of an equivalent provision to s.31G(6) Matrimonial and Family Proceedings Act 1984.    Given that HHJ Bellamy expressly – and right – framed the duty by reference to the Human Rights Act 1998 and the ECHR, logic suggests that the same principles should also be applicable, and that practitioners and judges in the Court of Protection should be astute to consider when such an order would be appropriate.

CategoryPractice and procedure - Other, Practice and procedure Date

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