In the context of the substantial cuts to the legal aid budget and the removal of legal aid for most family cases, the courts have in recent months given guidance on how parties who find themselves ineligible for legal aid but unable to afford representation can obtain assistance in court.
In the case of Re K and H (Children: unrepresented father: cross-examination of child)  EWFC 1 HHJ Bellamy considered an application for contact with the parties’ children 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 therefore able to afford to pay privately for legal representation and did not do so by choice alone. The judge found as a fact that with a disposable income (for legal aid purposes and excluding standard living costs such as food and utilities) of £960 the father could not afford to pay for representation and that the Lord Chancellor’s approach, if applied widely, would be a breach of the Article 6 rights of many people in a similar position. The Bar Pro Bono Unit had been unable to provide counsel to conduct the hearing. 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  2 FLR162). Applying the same case it would not be appropriate for the Judge to conduct the questioning.
The court considered the guidance in Q v Q; Re B; Re C  EWFC 31, that s. 31G(6) of the Matrimonial and Family Proceedings Act 1984 gave the court the power to order that Her Majesty’s Courts and Tribunals Service (HMCTS) should provide legal representation for the cross-examination of a vulnerable witness. In that earlier case the court had considered similar applications. Guidance had been given that in cases which are ‘grave and forensically challenging’ it would be inappropriate for the court to conduct the cross-examination of a vulnerable witness on behalf of the alleged abuser. S. 31G(6), however required the court to ‘put or cause to be put’ the relevant questions to the witness. The court held that ‘cause to be put’ must envisage the provision of another person to conduct cross-examination; i.e. an advocate appointed by and paid for by the court. The President had previously considered the same issue in relation to public law proceedings in Re D (A Child)  EWFC 39.
In Re K v H HHJ Bellamy rejected the Lord Chancellor’s argument that this was an attempt to circumvent the will of parliament set out in the relevant legal aid legislation. He found that the fact that HMCTS will pay for interpreters and the preparation of bundles amounted to the court paying for the representation of an unfunded party, where representation has a wide definition not limited to advocacy within the terms of LASPO.
The following guidelines were established;
- It is the first duty of judges 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 and is ‘unable to examine or cross-examine a witness effectively’ the court has a duty to assist that party. 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 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.
- The fee payable by the court to such a representative should be the same as that payable if the work were undertaken under the legal aid scheme