Family Law

Sources of state funding in the family courts

Two cases have been published already this New Year from different parts of the meagre family courts state funding scene (for a review of that scene see ‘State funding for family proceedings: Part 3: Sources of family proceedings funding’ [2014] Fam Law 1745 by David Burrows). Each case deals with different funding sources. Re K and H raises the point as in the context of whether HMCTS should fund the taking of evidence from a vulnerable witness (and see Q v Q; Re B; Re C (Private Law: Public Funding) [2014] EWFC 31, [2015] 1 FLR (forthcoming and reported at [2014] Fam Law 1398, Sir James Munby P). The legal aid question which the judge addressed was largely a cul-de-sac. The other case – known as Re D (No 2) it has had some notoriety, already – raised a relatively simple legal aid means and merits test issue. (There had been Human Rights Act 1998 jurisdiction question which seems largely – and unaccountably – to have dissipated: Re DE (Child under Care Order: Injunction under Human Rights Act 1998) [2014] EWFC 6, [2015] 1 FLR (forthcoming and reported at [2014] Fam Law 1230, Baker J).

The 2015 version I have of Re D is entitled Re D (A Child) (No 2) [2015] EWFC 2, [2015] 1 FLR (forthcoming), Sir James Munby P; but is at least the fifth published outing for that case (though perhaps only the third for Sir James). The father now has a legal aid certificate with a contribution (nothing particularly unusual in that); and his case – a little unusual in itself (Children Act 1989, s 39 (discharge of a care order)) – will be dealt with him and the mother of their child being represented.

The short point perhaps was one for Sir James to raise quietly with the Ministry of Justice behind the scenes (and other concerned bodies such as Resolution could do the same). There is fairly obviously a lacuna in the system. Its remedying would be a slight adjustment by delegated legislation. Three high profile hearings before Sir James in as many months, with 15 or so lawyers per time, were surely not necessary?

Vulnerable witness evidence

By contrast the ‘Y’ evidence case – otherwise Re K and H – should represent a high profile aspect of our family court scene. The information – ‘evidence’ – of children, as one category of a number of ‘vulnerable witnesses’, was one of the consultation projects which was under way as summer 2014 started. In Re K and H (Children: Unrepresented Father: Cross-Examination of Child) [2015] EWFC 1, [2015] 1 FLR (forthcoming), His Honour Judge Bellamy sitting as a Deputy High Court judge in the Family Court, this so important child law subject has surfaced in a practical context. In a fine assessment of the law this truly learned judge has explained the circumstances in which he believes that a child witness should not be cross-examined on fact by her adult alleged abuser (para [43]); and why and when this should not be by the court (para [32]; and see Matrimonial and Family Proceedings Act 1984 (the 1984 Act),         s 31G(6)).

In the process the important ‘vulnerable witness’ debate got slightly lost in a long discussion of legal aid issues which should have been only tangential to Judge Bellamy’s decision (on and off throughout paras [15]–[55]). The issue in this case – surely? – is who should assist the court (as the Attorney-General did in H v L and R [2006] EWHC 3099 (Fam), [2007] 2 FLR 162 Roderic Wood J, by providing and advocate to the court under Attorney General’s Memorandum of 19 December 2001 (text available in eg Family Court Practice at p 2869) where a vulnerable witness is to give evidence and where s 31G(6) applies.

The summer blaze of family court ‘consultations’ – see eg my ‘Consultations in progress per President’s 13th fenestral musing’ (17 August 2014); included, amongst three consultation exercises, that of the Vulnerable Witness Working Group: see ‘Interim Report of the Children and Vulnerable Witnesses Working Group – 31 July 2014’. The aim of this group was to propose (para 2) ‘a new mandatory (sic) rule… supplemented by practice directions (PD) and guidance approved by the President.’) My response was submitted on 5 October 2014 (yet to be acknowledged by its addressee the Courts and Judiciary). Re K and H shows how important is but one aspect of the subject.

K and H: the facts

The facts of the case are simply stated. Y, now aged 17, is the older of M’s, a mother’s, older two daughters. She had a relationship with F and two more children were born, K (a girl aged 5) and H (a boy, 4). Y alleged sexual assault by F, which he denies. He seeks contact with his children, and the truth of what she alleges – says Judge Bellamy – must be tested by ‘oral evidence at a finding of fact hearing’ (para [10]).

On the assumption that a witness in Y’s position does not wish to be cross-examined by the alleged perpetrator (and the question arises in the case of other vulnerable witnesses: forced marriage cases; allegations of rape; mental capacity issues etc), two different questions arise for the court:

• is it appropriate, anyway, for an alleged abuser to cross-examine his/her alleged victim; or
• if the alleged abuser does not wish to cross-examine, should s/he have to (F was in this second category: he did not want to have to cross-examine Y).

The first requires the judge to say: you may not cross-examine, because I say so. The second requires the judge to decide, what next where an unrepresented alleged perpetrator who is not eligible for legal aid (means or merits or both) does not wish – entirely understandably – to cross-examine. The second instance was the case here; though Judge Bellamy also holds he was satisfied ‘that it is not appropriate for [F] to cross-examine Y’ (para [75]).

Funding for the cross-examination of Y

F’s means made him ineligible for legal aid. He had dealt with part of the case by funding it himself. It is submitted that this is not the first question. If it is the fact – for whatever reason – that F is not funded (eg from choice or limited means) and if Y’s evidence is required by the court then the question is whether the court requires her to be cross-examined by an advocate for the court; and if so who should pay for that.

With assistance from leading counsel instructed by the Lord Chancellor the judge examined the provenance of the 1984 Act, s 31G(6), since Magistrates’ Courts Act 1952, s 61. Section 31G(6)(b) provides for parties who are not represented as follows:


He held that the provision should be viewed in its modern Family Court context (para [34]); and this raised directly the appropriateness of the court cross-examining the child witness. The judge explained this as follows:

‘Y's allegations against the father are pivotal to determining welfare issues in respect of K and H and in particular the issue of the nature and extent of their future contact (if any) with their father…. 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.’ (para [42])

And he concluded that there are cases – of which K and H was one (para [43]) – where ‘cross-examination by the judge is incompatible with the Art 6 and Art 8 rights of the respective participants and is not, therefore, appropriate’. And this lead to what was meant by ‘cause to be put to’ (in s 31G(6)). Could a non-party be required to fund this where a party – F in this case – was not represented? The conclusion was that on analogy with other HMCTS funding (paras [48]–[55]) and despite F being outside scope on means, then the expense of an advocate to cross-examine Y should be paid for by HMCTS.

It is submitted that the answer was much simpler than this. The Y question can be approached solely from the point of view of the ‘vulnerable witness’, and what a fair trial – ie the common law – demands for her evidence. If a family court must help her, Human Rights Act 1998 requires HMCTS not to let her not have a fair trial (s 6(1), as Sir James mentioned in Q v Q). If F acts in person – it might be his choice – and the court holds Y cannot be examined by him, then the cost of an advocate (as in H and L) is not beyond the Lord Chancellor’s purse; and that has nothing to the legal aid budget? My only caveat is to wonder whether the approach to the cash is not through the Attorney-General rather than HMCTS.

A common law/human rights blog take on this, from David Hart QC suggests:

‘…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 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 [fair trials] are afforded by our common law… 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.’

The funding application: case management

The practical aspects of the funding issues are not given immediate attention by Re K and H; but then nor, it seems, was the judge’s attention drawn to Attorney General’s Memorandum of 19 December 2001. The decision must be addressed by the court with the party in F’s position at an early case management appointment; a decision by the ultimate fact-hearing tribunal must be made as to whether an unrepresented alleged perpetrator (see Judge Bellamy’s check-list at para [74]) should be required not to cross-examine (para [43]). The funding application must be made, by the court – and it is submitted here, that application should be (as in H and L) to Attorney-General under the 19 December 2001 Memorandum.

And then if I was running the family courts I would politely: (1) ask Ministry of Justice to sort out the Re D lacuna in relation to Children Act 1989, s 39; and (2) request of the Vulnerable Witnesses Group when they will be reporting back. I would suggest to them that they include the Attorney-General and HMCTS in their discussions as to how information from vulnerable witnesses in this K and H type of case should fairly – ie per the common law and from the point of each witness – be put before the family courts.

---

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.