Jane Wilson, Chair of Resolution’s Domestic Abuse CommitteeOn Friday 22 May, the Court of Appeal
ruled in favour of the Lord Chancellor, in his appeal against the decision
of His Honour Judge Bellamy in
Re K and H (Children: Unrepresented Father: Cross-examination of Child) [2015] EWFC 1.
In the proceedings in the court below, His
Honour Judge Bellamy ruled that the costs of a legally qualified advocate to
cross-examine the mother’s oldest daughter (Y), whose evidence was crucial to
determining the outcome of the case, should be met by HMCTS.
The result of the appeal raises some
interesting questions, if not significant challenges, for those working with
victims of domestic abuse where one party is a litigant in person. In fact I
commented on these issues more than 5 years ago in
Domestic Abuse:
Practice and Precedents
(The Law Society, 2010).
Yet, despite the significant changes to
legal aid since this book was published, the need for change in this area still
remains – as has been highlighted in this case.
With the father in the case acting as a
litigant in person, it was not appropriate for him to cross-examine Y. Nor, it
should be noted, did he wish to do so. It was clear that the father was not
eligible for legal aid; yet nor was he in a position to pay for legal
representation.
It was said that the judge should have
questioned the vulnerable witness on behalf of the alleged perpetrator. Although
this is a ‘less worse’ scenario than being questioned by the perpetrator, it
could give the impression to the victim that the judge is on the side of the
alleged perpetrator.
So where does this leave us? It’s a fair
question, and the answers are less than clear.
HHJ Bellamy’s original call for HMCTS to
fund advocates has been supported by the President of the Family Division on two
occasions to date.
And in the
final
report of the Vulnerable Witnesses and Children Working Group
, it states:
‘In all family proceedings the lack of
appropriate support and assistance for witnesses, whether they are parties, the
children and young people or interveners would amount to a denial of justice.
Failure to provide sufficient and adequate support for vulnerable or intimidated
witnesses whether they are children, young people or adults results in a
concomitant failure in their ability to give their best evidence, in turn
directly undermining the likelihood of the judge or tribunal reaching a fair
decision; it is justice denied.’
I would hope that neither the Lord
Chancellor nor HMCTS are in the business of denying justice to people. So the
only conclusion is that support must be given to enable a fair decision to be
reached. Regrettably, the report did not go so far as to recommend the funding
of an advocate to cross-examine vulnerable witnesses.
As
Coram Children’s Legal Centre and ALC rightly stated, there is an urgent need for statutory provision to deal with
these circumstances which, since the changes to legal aid and the increase in
litigants in person, will sadly become more common.
This is also made clear in the Court of
Appeal’s judgment, which seems to fall into the category of having to act within
the law, but the law needs to change.
The judgment also highlights that there is
currently provision in the criminal court to allow payment for legal
representatives to protect vulnerable witnesses. It’s only right and proper that
the same provision is made for victims of domestic abuse in the Family Court.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
