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The problem of litigants in person and vulnerable witnesses: lessons from the criminal courts?

Date:11 APR 2016
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Tom Wilson, 1 Garden Court

Successive public funding cuts in private law proceedings have left many parents without recourse to legal representation. In cases involving allegations of grave physical and sexual abuse, unrepresented parents are left to cross-examine, or be cross-examined by, the individuals against whom such allegations are made.

This unsatisfactory situation led to judicial activism in the form of orders directing HMCTS to fund the cost of legal representation. The Court of Appeal in Re K and H (Children) [2015] EWCA Civ 543 called a halt to this practice, holding that such an order was ultra vires and that a lack of legal representation did not amount to a breach of a parent's right under Art 6 of the ECHR.

In this article, Tom Wilson doubts the Court of Appeal's reasoning, and examines alternative sources of legal representation. He concludes that those proposed in Re K and H are unrealistic. Instead, Tom argues that the most appropriate solution is to enact comparable statutory protection as is available in the criminal courts, permitting the court to draw on central funds to appoint an advocate for the purposes of cross-examination.

The full version of this article appears in the April 2016 issue of Family Law. 

Online subscribers can access the full version of the article here.

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