Judgment in the appeal case of Re K-H (Children)  EWCA Civ 543 has been handed down by the
Court of Appeal. The appeal was brought by the Lord Chancellor against the decision of His Honour Judge
Bellamy sitting as Deputy High Court Judge in Re K and H (Children: Unrepresented Father: Cross-Examination
of Child)  EWFC 1.
The proceedings in the Family Court at Leicester concerned arrangements for the father to spend time
and have contact with his children (K and H). The mother’s older daughter (Y) alleged that she had been
sexually abused by the father. There was to be a fact-finding hearing for the court to determine the truth
of the allegations and what impact, if any, this would have on the application before the court regarding
child arrangements for K and H.
The court determined that Y should give live evidence to the court. The father was not legally
represented: he was not eligible for legal aid and said he could not afford legal representation, which the
court considered was not unreasonable considering his income and outgoings. His Honour Judge Bellamy’s
decision was that Her Majesty’s Courts and Tribunals Service (HMCTS) should fund the costs of a legally
qualified advocate to cross-examine Y on the father’s behalf, because it was not appropriate for the father
to cross-examine Y or for the judge to put questions to Y to test Y’s allegations. Support for the
proposition that the judge could order HMCTS to provide such funding can be found in the judgments of
Sir James Munby, President of the Family Division in the cases of
Q v Q (Private law: Public Funding)  EWFC 31,  1 FLR 324
and in Re D (Non-Availability of Legal Aid)  EWFC 39,  1 FLR 531
Association of Lawyers for Children (ALC)
and Coram Children’s Legal Centre (CCLC)
concerned about the issues raised in this case, and so applied to the Court of Appeal to intervene.
Permission was granted. The interveners were represented by Deirdre Fottrell QC and Marlene Cayoun
(both of 1 Garden Court Chambers and acting pro bono). The primary position of the interveners was that
where children give evidence to the court, and are to be cross-examined or asked questions by or on
behalf of litigants in person, this presents a significant difficulty for the trial judge who must be afforded
wide discretion to provide such assistance as is necessary to protect the rights of the individual child
(whether that child is the subject of the proceedings or not). The Court of Appeal upheld the appeal of the
Lord Chancellor and so found that judge’s decision was wrong and that there was no power for the judge
to order HMCTS to provide the funding.
Noel Arnold, Director of Legal Practice at CCLC who was the solicitor for the interveners (acting pro bono)
'We are pleased to note that the Court of Appeal has acknowledged the difficulties presented in this
category of case and has suggested that there should be consideration given to creating a statutory
provision to cater for these complex situations. We strongly encourage Government to take steps to
remedy this problem.'
Maud Davis and Nicola Jones-King, Co-chairs of the ALC, said:
'It is vital that children’s voices are heard in
these very difficult situations, and that they can safely give evidence if the court decides that is necessary.
If the law as it stands makes no proper provision for this to happen, then there is an urgent need for
The full judgment for Re K and H (Children: Unrepresented Father: Cross-examination of Child)  EWFC 1 is available here.