Since legal aid was withdrawn for all private law actions, save for those which are excepted from the scheme, there has been much debate (and some litigation) on the issue of the fairness of such arrangements and the perceived lack of justice in denying the victims of domestic abuse and/or of unreasonable conduct in relation to contact, the benefit of legal representation.
While the Government has recently announced that it will loosen restrictions imposed on victims of domestic abuse which were preventing them from accessing legal aid in family cases, even when it was accepted that they had suffered violence, the system remains restrictive and this does nothing to address the difficulty for parents who face unreasonable restrictions on their contact or have low incomes and must address difficult or complex legal proceedings. The Court of appeal in Re K and H (Children)  EWCA Civ 543 considered the power of the courts to make an order that the Court Service (HMCTS) should fund representation in some family proceedings where an otherwise unrepresented party was unable to do so independently.
Attempts were made in Re K and H (Children: unrepresented father: cross-examination of child)  EWFC 1 to address this issue. HHJ Bellamy considered an application for contact in circumstances where another child of the mother had alleged sexual abuse against the applicant father. That child, now 17, had been the subject of an ABE interview and was to be ordered to give oral evidence in the fact-finding hearing. The issue arose as to how the cross-examination was to be undertaken where the father was a litigant in person. The guidance on obtaining the oral evidence of a child in such proceedings clearly states (Guidelines in relation to children giving evidence in family proceedings, Family Justice Council, at para 17) that ‘A child should never be questioned directly by a litigant in person who is an alleged perpetrator’ and that (at para 21) ‘…the ultimate responsibility for ensuring that the child gives the best possible evidence…rests with the tribunal.’
The Lord Chancellor intervened and argued that as the father was ineligible for legal aid he was able to afford to pay privately for legal representation and did not do so by choice alone. The judge found as a fact that the father could not afford to pay for representation and that the Lord Chancellor’s approach would be a breach of the Article 6 rights the father. The Bar Pro Bono Unit had been unable to provide counsel. There was no guardian and the use of a guardian’s representative to cross-examine the children’s sister would not have been appropriate in any event (applying H v L and R  EWHC 3099 (Fam)). Applying the same case it would not be appropriate for the Judge to conduct the questioning.
Relying on Q v Q; Re B; Re C  EWFC 31 the judge concluded that HMCTS should meet the cost of the father’s representation and gave guidance on how the Court should approach such a decision. The Lord Chancellor, however, appealed and the Court of Appeal overturned that judgment and the guidance in Q v Q.
The Court of Appeal set out the relevant statutory basis for the provision of legal aid and for the provision of services to ensure the proper administration of the Family Court. The Court observed that while the criminal courts are able to determine whether an individual qualifies for legal aid, that role otherwise lies with the Director of Legal Aid Casework and that the basis for all of this was statutory.
The Court (the lead judgment being given by the Master of the Rolls) held that;
- The starting point is that a clear principle of statutory interpretation is that a general power to do something (in this case to provide funds for the proper administration of the Family Court) could not be used to circumvent a clear and detailed statutory code,
- It was important to remember that “nothing less than clear and unambiguous language is effective to levy a tax. Scarcely less important is the requirement of clear statutory authority for public expenditure.” For this the case of Holden & Co v CPS (No 2)  1 AC was cited – a case where an attempt had been made to secure funding by security of costs for criminal appeals outside the statutory code.
- These principles were unaffected by the coming into force of the Human Rights Act.
- It was not possible to interpret LASPO or the Courts Act 2003 and Matrimonial and Family Proceedings Act 1984 in such a way as to circumvent the clear statutory code within LASPO. Parliament had decided who was entitled to legal aid and the Court must respect that.
- Parliament has provided by regulations for the provision from central funds of the costs of representation in criminal proceedings, but has not done so in civil or family proceedings. A similar provision would be required to extend the scheme to such proceedings.
- The intention of the provision requiring the Court to “cause to be put” questions on behalf of an unrepresented party (s. 31G(6) of the 1984 Act) was to provide that magistrates’ clerks should put those questions. Now that the courts had been reorganised it was possible to make use of their skills in any part of the Family Court system in that manner.
- It is plain from the European Jurisprudence that it is not necessary to provide public funding in order to secure a fair trial (see Steel and Morris v UK  41 EHRR22). As such there was no breach of Article 6 in not providing public funding in this case.
As a result the court should consider;
- A direction that the child should give evidence which is conditional upon the father being represented, though this would be inappropriate in some cases, such as where the evidence of the witness was essential,
- The child or other vulnerable witness being questioned by the Judge, which was said to be a difficult situation, though the judge could ‘question’ without ‘cross-examining’,
- The witness being questioned by a justices’ clerk, or
- The appointment of a children’s guardian.
It was acknowledged that there may be cases where the above options were all impossible and encouragement was given for the enactment of some statutory provision to enable representation to be secured in such cases on a basis equivalent to that in criminal proceedings. A response from the MOJ to that request is eagerly awaited.