The abolition of legal aid for family cases and the concomitant increase in the number of self-representing parents appearing before the new single Family Court, continues to raise troubling (and perhaps unforeseen) legal situations that risk damaging our justice system and the rights of those who come before the courts.

The recent case of Re K & H (Children: unrepresented father: cross-examination of child) [2015] EWFC 1 demonstrates one such issue. The case concerned allegations of sexual abuse that were made against the Father (F) in July 2013 by one of the Mother (M)’s older children (Y) from a previous relationship. Y was 17 years old and not a child of the application. Having made the allegations, Y had been interviewed by the police in accordance with the Achieving Best Evidence guidelines and F had been arrested and interviewed. In interview, F denied the allegations and in August 2013, the police decided to take no further action.

In September 2013, M then issued applications for Residence and Prohibited Steps Orders and these were granted, initially on a without notice basis and later on an interim basis pending the final determination of her application.

There followed a substantial delay, before it was finally determined that a finding of fact hearing would be listed to determine the allegations. F’s position was that the court should require Y to give oral evidence to enable him to challenge her account. The Court was referred to the guidance given by the Supreme Court in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12 and the Judge also commissioned a short report from CAFCASS on the issue. Having received this report, it was then determined that Y should give oral evidence at the finding of fact hearing.

In light of the fact that F was not represented, the question then arose as to whether F should be permitted to cross-examine Y? F was clear that he did not want to cross-examine Y himself, but contended that he should be entitled to legal representation, either generally or for the limited purpose of cross-examining Y. CAFCASS agreed and recommended that an intermediary be appointed. The Court was then called upon to determine what should happen.

Prior to the hearing and in light of the issues, the Lord Chancellor was then granted the right to intervene and was represented by leading counsel.

Should F cross-examine Y?

The Court began from the position that the Guidelines in relation to children giving evidence in family proceedings (Family Justice Council, Dec 2011) made it clear that:

“17. A child should never be questioned directly by a litigant in person who is an alleged perpetrator … ; and

21. … the ultimate responsibility for ensuring that the child gives the best possible evidence in order to inform the court’s decision rests with the tribunal …”

As a result, the Court quickly determined that F should not cross-examine Y and therefore set about examining the following alternatives:

1. Whether the F was entitled to representation under the legal aid scheme
2. Pro bono representation
3. Cross-examination of Y by a children’s guardian (to be appointed for the purpose)
4. An Order under Section 31G(6) Matrimonial and Family Proceedings Act 1984

(1) Legal aid

The court considered the scheme for legal aid under the Legal Aid Sentencing & Punishment of Offenders Act 2012 (“LASPO 2012”) and noting that the F was outside of the scope on grounds of his disposable income, considered the discretion under s.10 that could be exercised in “exceptional cases”. Following the decision of the Court of Appeal concerning this provision, however, the Court was bound to accept that this exceptional funding was only available to those that are able to satisfy the usual means and merits test, which F did not: see R (on the application of Gudanaviciene & Ors) v The Director of Legal Aid Casework & The Lord Chancellor [2014] EWCA Civ 1622.

It was therefore submitted on behalf of the Lord Chancellor that if the father was ineligible for legal aid, it was a matter of personal choice whether he chose to pay for representation. This submission was soundly rejected by the Judge however, who held on this issue that:

“Whereas inability to pay for legal representation is demonstrated by having a disposable income below the maximum allowed by the [Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 (the “Regulations”)], it does not follow that inability to pay is demonstrated by having a disposable income above the maximum provided for by the Regulations. The person with a disposable income of £734 per month falls on the wrong side of the divide so far as financial eligibility for legal aid is concerned. However, it would be absurd to suggest that such a person is better able to meet his own legal fees than his neighbour with a disposable income of £733 per month.”

The Judge then referred to the non-allowable deductions that the F had to meet each month out of his disposable income of £960 – food, council tax, water rates, gas, electricity, telephone, clothing and travel – and concluded that he was therefore satisfied that F did not have the resources to pay privately for legal representation. Seemingly emboldened by his decision on this issue, the Judge then made the following additional observation concerning the position that had been taken by the Lord Chancellor (which would also be developed upon later in his judgment as set out below):

“…there are likely to be many people in this country with disposable incomes of more than £733 per month who are genuinely unable to fund the cost of legal representation. For those who fall into that category the application of the approach suggested by Miss Whipple [Counsel for the Lord Chancellor] would appear likely to lead to a breach of an unrepresented litigant’s Article 6 rights”

(2) Pro Bono Representation

At the Judge’s request, F had approached the Bar Pro Bono Unit. It had agreed to accept his case in principle, but unfortunately had been unable to identify counsel available to assist. The Judge made it clear that he did not criticise the Unit for this and stated that it would be unreasonable to expect it to provide assistance in every case that required it.

(3) Children’s Guardian

It was submitted on behalf of the Lord Chancellor that a children’s Guardian could be appointed on behalf of the children, who could then put questions on behalf of the F.

The Judge highlighted, however, that the children were not currently parties to the proceedings and having considered the indicative list of circumstances in Practice Direction 16A of the Family Procedure Rules 2010 (“FPR 2010”), stated that he was not persuaded that it would be appropriate to do so.

He added that even if he was, there would remain the question of whether it would be appropriate for a children’s Guardian to put questions on behalf of the F and made reference to the case of H v L and R [2007] 2 FLR 162 in which Mr Justice Roderic Wood had agreed with the Guardian that it would be “wholly inappropriate” on the facts of that case. Mr Justice Roderic Wood had also ruled out the appointment of CAFCASS Legal, the Official Solicitor or the Attorney General and the Judge in this case agreed that their appointment would also be inappropriate here.

(4) Section 31G(6) Matrimonial & Family Proceedings Act 1984 (MFPA 1984)

Finally, the Court considered whether the recent judgment of the President in Q v Q; Re B; Re C [2014] EWFC 31 concerning the interpretation of the newly inserted s.31G(6) MFPA 1984, might provide the answer to the problem it it now faced.

Section 31G(6) MFPA 1984 states 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 that party the matters about which the witness 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 in the interests of that party as may appear to the court to be proper. “

Although Counsel for the Lord Chancellor sought to argue that the interpretation of these provisions should be limited to how they were understood in the contexts in which they had previously appeared in statutes going back to 1952, the Judge rejected this submission by holding that these expressions:

“…fall to be considered and interpreted in their new context. Since 22 ^nd April 2014 that context has been the Family Court, a public authority charged with conducting its business in a way which is compatible with the Convention rights of those who appear before it, both litigants and witnesses”

(a) The meaning of “…the Court is to … put … to the witness“

This reference to convention rights was then built on by the Judge in his analysis of the meaning of “…the Court is to … put … to the witness” within s.31G(6)(b). Specifically, he reasoned that although questioning by the Court was a possibility – see for example the reference to a court dealing with a finding of fact hearing as being “inquisitorial” within Practice Direction 12J FPR 2010, paragraph 28 – he noted Mr Justice Roderick Wood’s “profound unease” about such a course of action in H v L and R [§24], which had been cited with approval by the President in Q v Q; Re B; Re C:

“… in 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.”

In the present case, the Judge confirmed that he shared these concerns and was satisfied that questioning by the court would be “wholly inappropriate“. He reasoned that the outcome of the hearing would be pivotal to determining welfare issues in respect of K and H and asked:

“In such circumstances, can it seriously be contended that it would be ‘appropriate’ for the judge, who must determine the facts, to cross-examine the key witness upon the reliability of whose evidence the fact-finding exercise so heavily depends? In answering that question I bear in mind that the question engages not only the father’s Art 6 and Art 8 rights but also those of K and H and arguably those of Y, too.”

(b) The meaning of “… the court is to … cause to be put, to the witness “

Having rejected the possibility of the Court putting questions to Y, the Judge then considered the meaning and effect of the alternative option within s.31G(6)(b): “… the court is to … cause to be put, to the witness “.

The Judge reminded himself that in Q v Q; Re B; Re C [§79], the President had concluded that:

“…if the criteria in section 31G(6) are satisfied, and if the judge is satisfied that the essential requirements of a fair trial as required by FPR 1.1 and Articles 6 and 8 cannot otherwise be met, the effect of the words “cause to be put” in section 31G(6) is, in my judgment, to enable the judge to direct that appropriate representation is to be provided by – at the expense of – the court, that is, at the expense of HMCTS “

The Judge also reminded himself of the fact that the Lord Chancellor had been invited to intervene in Q v Q [see: [2014] EWFC 7] but had declined to do so. His intervention in this case therefore allowed the conclusion reached by the President in Q v Q; Re B; Re C to be subjected to legal argument.

On behalf of the Lord Chancellor, it was argued that in circumstances where Parliament had provided a single, comprehensive and unitary statutory code for the public funding of litigation in LASPO 2012, the Court had no power to require HMCTS to meet the cost of legal representation which was not available under the statutory scheme. In essence, it was submitted that such an Order would be ultra vires, constitutionally wrong, and would be “conjur[ing] a different power to plug the perceived gap from a different statute“.

The Judge rejected these submissions, however, holding that the President’s more recent judgment in Re D (A Child) [2014] EWFC 39 made it very clear that he was not circumventing the will of Parliament, but rather was acting in accordance with the Court’s duty to deal with cases:

“… justly and in a manner compliant with Articles 6 and 8 of the Convention. That, after all, is what Parliament determined when it enacted section 6 of the Human Rights Act 1998, declaring, subject only to section 6(2), that it is “unlawful” for a court to act in a way which is incompatible with Articles 6 and 8″.

Further, the Judge did not accept that LASPO 2012 provided an exclusive unitary code for the funding of legal representation and having referred to the definition of “representation” within s.42(1) LASPO 2012, proceeded to highlight how this encompassed several different aspects beyond oral advocacy, some of which were already funded by HMCTS self-represented parties, but which would be covered by legal aid if the litigant was legally aided.

These included the provision of interpreters, the preparation of litigant-in-person hearing bundles and arguably, in the Judge’s view, the provision of an ‘intermediary’ as a form of ‘special measure’ to assist children giving live evidence in court proceedings, as this had also previously been held by Mr Justice Baker in Wiltshire County Council v N [2013] EWHC 3502 to be “… a type of interpretation service ” within the applicable remuneration regulations.

In the Judge’s opinion, it was plain that the reason these additional aspects were funded by HMCTS in the prescribed circumstances was to ensure that a fair trial was possible within Article 6. In summary, the Judge therefore rejected the Lord Chancellor’s submissions and held that he did:

“… not accept that the comprehensive nature of the legal aid scheme precludes the State from providing, or the courts from requiring the State to provide, aspects of ‘representation’ for those who are not able to benefit from the scheme set out by LASPO in circumstances where this is necessary, appropriate and proportionate in order to safeguard their Convention rights and to ensure compliance by the court with its own duty to act in a way which is compatible with Convention rights. The court’s power to direct that the cost of certain activities should be borne by HMCTS is, as the President has said, ‘an order of last resort’. However, that the power exists at all is in my judgment absolutely clear”

Consequently, it was determined that a legally qualified advocate should be appointed to cross-examine Y on the F’s behalf and that that representative would be entitled to be paid by HMCTS at the same rate as would apply if the work was being undertaken for a legally aided client.

Comment

Q v Q; Re B; Re C, and now this case, signal a fight back by the Family Court against the effects of the legal aid changes under LASPO 2012, using the pervasive powers of the Human Rights Act 1998.

It cannot have been foreseen by the government that the provisions of s. 31G(6) MFPA 1984, which it brought into force in April 2014, would provide an alternative mechanism by which an unrepresented party might obtain paid-for representation from the court. What these judgments make clear, though, is that such a power does exist and may be utilised in appropriate circumstances.

It remains to be seen whether the government may now attempt to close this loophole, but with the Court’s comments about the right to fair trial still echoing in it’s ears, it would be a brave move indeed, particularly in an election year where it may be seized on by the opposition as a further example of the government attempting to curtail individuals’ (and particularly parents’) rights in exchange for a reduction of the deficit.

In the meantime, the courts are likely to be asked to consider utilising this power on many further occasions, particularly given the dramatic increase in self-representing parties.

The direction taken by the Family Court in these recent cases was a bold one, but with the rights to a fair trial and the protection of parents’ and children’s private interests at stake, it is one that we as lawyers should do everything to support. Vive la r ésistance!