How to make family hearings fair

Re K and H (Children: unrepresented father: cross-examination of child) [2015] EWFC 1, HHJ Bellamy – read judgment 

Philippa Whipple QC of  1 COR appeared for the Lord Chancellor in this case.  She has played no part in the writing of this post.

This case raises a very stark problem. A father wants to see his children aged 5 and 4. The mother has an elder daughter, Y, aged 17. Y told her teacher that the father sexually abused her. The truth or otherwise of this allegation is relevant to whether there should be contact between father and his children. 

The father is a litigant in person, and unsurprisingly (whatever the status of her allegations) Y does not to be cross-examined by the father, nor, equally understandably, does the father wish to do so himself.

So who should? And does the court have the power to order Her Majesty’s Courts and Tribunals Service (HMCTS) to pay for legal representation for the father limited to that cross-examination of Y? So the Lord Chancellor was allowed to intervene – he had been invited to do so in a previous case (Q v. Q – here, and our post here, to which we will come), but had been unwilling to do so – not perhaps tactful to the judges but then he still seems to be learning the ropes in that respect – see here.

The judge, after considering a report on Y from Cafcass, decided that Y should give oral evidence at the finding of fact hearing. The Family Justice Council’s Guidelines in relation to children giving evidence in family proceedings unequivocally suggest that a child should never be questioned directly by a litigant in person who is an alleged perpetrator, and the judge concluded that the father should not cross-examine Y.

So what now? You have a key witness, but no-one obvious to cross-examine them.

Legal aid is not available, even exceptional funding because (as explained in Gudanaviciene – see post here) it only be made available to those who are able to satisfy the usual means and merits tests. And the father earned too much for legal aid.

So the question then arose: should the father be made to pay for his own representation? The Lord Chancellor argued that, because the father is financially ineligible for legal aid, it follows that it was a matter of personal choice whether he chose to pay for representation. The judge rejected this – it does not automatically follow that those above thresholds for legal aid can afford the costs of lawyers, whatever the dispute may involve. And the judge went on to accept that the father does not have the resources to pay privately for lawyers.  He made the point more broadly:

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 [counsel] would appear likely to lead to a breach of an unrepresented litigant’s Article 6 rights.

In Q v Q, Sir James Munby P, suggested that 31G(6) of the Matrimonial and Family Proceedings Act 1984 (into force in April 2014) may provide the answer to this problem.  It says that

“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.”

The judge looked at the possibility of the judge undertaking the cross-examination of a witness. This had been considered by Roderic Wood J in H v.L and R, who expressed a profound unease at doing this in the family jurisdiction – with which sentiments Sir James Munby P in Q v Q; Re B; Re C agreed:

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.

The judge considered that it would be wholly inappropriate in the present case.

 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 that 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.

Borrowing heavily on the analysis in Q v. Q, if the judge was satisfied that the essential requirements of a fair trial as required by Articles 6 and 8 could not otherwise be met, the effect of the words “cause to be put” in section 31G(6) enabled the judge to direct that appropriate representation is to be provided at the expense of the court – at the expense of HMCTS.

The Lord Chancellor’s response was that, given that Parliament has provided a specific scheme for public funding of litigation, the court had no power, whether under s.31G(6) or otherwise, to require HMCTS to meet the cost of legal representation other than under the statutory scheme. So an order requiring HMCTS to provide this funding would be ultra vires. Constitutionally the court has no power to circumvent the statutory code to require funding in some other way. Hence, it was argued that Sir James Munby’s conclusion was  “plainly wrong”. Establishing criteria by which civil legal aid should be provided at public expense is a paradigm example of an issue for Parliament to determine by legislation, and not for the Courts. The answer would be for Parliament (not the courts) to amend the scheme of legal aid.

The judge was having nothing of this. Citing Q v. Q again

It is, however, the responsibility – indeed, the duty – of the judges….to ensure that proceedings before them are conducted justly and in a manner compliant with the requirements of 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.

In any event, as the judge pointed out there were other forms of assistance outside the “exclusive unitary code” provided by LASPO which HMCTS did provide.  Section 42(1) of LASPO defines the meaning of ‘representation’ as including advice and assistance, which is far from limited to advocacy in court. And HMCTS was doing this in practice. The judge gave the example of interpreters, who were to be provided even where litigants were not on legal aid. This was a bit of a poser for the LC, because the obvious reason for this specific provision was that his department recognised that interpreters has to be provided in order to provide a fair trial. HMCTS also helps out (when requested) with providing files of papers for the court -how could you have a fair and efficient hearing otherwise?

At [74] the judge drew this together:

(a) 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).(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 (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.

(c) 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.

(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….

So the judge decided to appoint an advocate to cross-examine Y on the father’s behalf. The advocate should be entitled to the costs of reading the hearing bundle, watching Y’s video-recorded interview, taking instructions from the father, preparing for cross-examination of Y and attending that part of the hearing at which Y gives her evidence), and these must be paid by HMCTS. Interesting to muse on how the judge could possibly be expected to take instructions from a father in these circumstances whilst at the same time trying the case openly between all the representative interests – father, mother, the children the subject of the proceedings, and, not least, Y.

Conclusion

To me, the judge’s conclusion is driven inexorably by his view that the father should not cross-examine his step-child, and that the father could not afford his own lawyer. This is is because we have a tradition of our courts affording people fair trials within those courts. And you do not even need to mention human rights to come to that conclusion. Because, as we will have heard a million times this year by the end of it, those are afforded by our common law (cue lots of stuff about Magna Carta – sneak preview here).  And if our system of courts is to operate as a system, rather than disjointed bits with different annual budgets driven by Treasury targets without regard to what the system is really all about, then courts will have to do what both common law and the HRA requires them to do – make it fair.

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• State should pay cost of representation and witnesses in private law child disputes
• Exceptional legal aid should not be limited to extreme cases – Court of Appeal
• The non-residents legal aid case – LC advised to go for the ball, not his opponents’ shins
• Magna Carta and its progeny 
• Plan to stop non-residents getting legal aid unlawful, rules High Court – Angela Patrick
• Lack of legal aid stalls contact hearing
• Serious fraud trial abandoned because of cuts to legal aid