Re B illustrates the prevalent flip side of the government’s private
children legal aid policy. Legal aid for alleged rapists and domestic abusers
may be an unpalatable political sound bite (and an easy target for
Daily Mail journalists), but the
consequence of no provision is more than uncomfortable. Without representation,
a fair trial can only be salvaged by the respondent cross-examining the
complainant in person, in open court (without any of the ‘special measures’
with which the criminal courts are so accustomed – video links, curtains,
plastic screens, security guards, etc).
The same issue, in even more stark circumstances, was addressed in
January this year by HHJ Bellamy in
Re K and H (Children: Unrepresented Father: Cross-Examination of Child) [2015] EWFC 1. The case concerned disclosures by a child that her father had sexually
abused her. The judge was concerned with two questions: (i) who should
cross-examine the child; and (ii) did he have the power to order HMCTS to pay
for legal representation for the Father for the purposes of the child’s cross
examination? The Lord Chancellor was given permission to intervene.
The judge, in applying the Family Justice Council Guidelines (drawn
up as a result of
Re W [2010]
EWCA Civ 57, [2010] 2 FLR 256), quickly established that the father should not cross-examine the
child in person. But the father was not eligible for ‘exceptional circumstances’
legal aid because
R (on the application of Gudanaviciene & ors) v The Director of legal aid casework and the Lord Chancellor [2014] EWCA Civ 1622 had established that even where there were
Art 6 infringements, the candidate must still satisfy the means and merits
test. This father had roughly £100 per month too much disposable income to
qualify for legal aid but it was established he did not have the resources to
pay for representation.
In defining ‘representation’, HHJ Bellamy turned to s 31(G)(6) of the
Matrimonial Family Proceedings Act 1984, which the President had recently
relied on in
Q v Q; Re B; Re C (Private
Law: Public Funding) [2014] EWFC 31, [2015] 1 FLR 324. He considered that
just as HMCTS are expected to fund provision of bundles for litigants in
person, interpreters and intermediaries, the same applies for the funding of advocates
in exceptional cases. Where a party is unrepresented, the Matrimonial Family
Proceedings Act requires the court to ‘put, or cause to be put, questions to a
witness’. In cases where it is not appropriate for the judge to put such
questions (as in this instance where the issues were ‘grave and/or forensically
complex’), the court must arrange for a representative to put those questions
and the costs be borne by HMCTS. At present, it is unclear if the Lord
Chancellor has appealed this decision.
All of the above are instances where the court has considered the
lack of representation to constitute an infringement of convention rights yet
the respondents have not qualified as appropriately ‘exceptional’ (or have otherwise
failed the means/merits threshold) for the purposes of s 10(3)(b) LASPO. It
is clear these cases represent desperate attempts to 'patch the hole' – whether
through unconventional costs orders against the wealthier party, advocates
acting pro bono, or HMCTS’ own meagre
budget.
One can only hope that repeated warnings on the scarce allowances
for exceptional cases creep into the consciousness of the new justice
secretary (this
article was written on 6 May 2015 – I am being presumptuous in my use of the
word 'new'). Until such a time, the judiciary and legal profession will continue to try and
supplement a ‘fig leaf’ that is far from covering the embarrassment, indeed the
‘inhumanity’, of the legal aid cuts.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
