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Equality of arms – D v K and B 2014

 

One of the principles of article 6 of the Human Rights Act (the right to fair trial) is the ‘equality of arms’ – in essence that there should be a level playing field. Of course, there isn’t always – in a big money divorce, the person who has the assets might well be paying for the better lawyer,  sometimes one party will go and get a QC and the other can’t afford it.  Equality of arms was something that concerned a lot of people when the legal aid reforms came in and established that a person making very grave allegations would have the opportunity to get free representation, whereas the person defending themselves against what might be false allegations was very unlikely to get the same treatment.

D v K and B 2014 brings that into sharp focus

http://www.familylawweek.co.uk/site.aspx?i=ed128264

1. An issue arises in private law proceedings concerning B who is three years old. A fact finding hearing has to take place. One of the many serious allegations made by the mother is that she was raped by the father in 2010. The allegation of rape would be central to the fact finding hearing and so a court conducting that hearing would have to decide whether the alleged rape took place. The Father denies that it did. That allegation is not the subject of criminal proceedings.

2. The mother has the benefit of legal aid. The father does not. His application for legal aid has been rejected. This judgment was given on 27th January 2014 with the intention that it should be referred to the Legal Aid Agency. I invited them to reconsider the father’s application for legal aid as a matter of urgency. At the most recent hearing on 12th March I was told that the application had been reconsidered and had been rejected again.

 

This does seem, to me, to be a case where there should be equality of arms – father’s case is not rejected because he is wealthy and can afford to pay, but because of the principle that the person defending the allegations is unlikely to get funding (you need the Legal Aid Agency to decide that it is exceptional and justified)

The Judge outlined why he considered that this was an exceptional case and why public funding would be justified

6. If ever there was exceptional private law litigation then this must be it. I say that for these reasons:

i) The seriousness of the allegations involved.

ii) The fact that if these issues were before a criminal court the Father would be prohibited by statute from cross examining the Mother in person. That is as a result of s34 of the Youth Justice and Criminal Evidence Act 1999.

ii) The allegation of rape is one of a number of serious allegations that are made. Any analysis of that allegation would have to be placed in context. I find it very difficult indeed to envisage how a judge asking questions on behalf of Father would be able to do so in a way that he felt was sufficient.

iv) Fourthly and notwithstanding the provisions of Schedule 10 of the Crime and Courts Act 2013 (which I have considered, although they are not yet in force) taking into account the point that I have made in iii) above and the fact that the judge could not take instructions, I have difficulty in seeing how that statutory provision in Schedule 10 would be perceived as sufficiently meeting the justice of the case.

v) Where allegations of this seriousness arise it is very important that the respondent to the allegation is given advice. That advice cannot be given to him by the judge and could not be given to him by the representative of the guardian.

vi) The issue that arises is of very real importance to the two adults but also to this child. If the Mother’s allegations are substantiated there is a very real prospect that they may prove to be definitive of the relationship between this child and her Father.

vii) In fact finding cases of complexity a judge is expected to give himself full and correct legal directions. It is vital that those legal directions are correct and take account of the positions of both of the parties immediately involved.

viii) Although enquiry might be made of the Bar Pro Bono Unit or indeed of the Attorney General to see whether arrangements might be made for D to have free representation or the Attorney General to act as amicus curiae neither of those solutions presents itself as likely to be available and neither is anywhere near as satisfactory as D having his own representation. I regard it as highly unlikely that either avenue of enquiry would produce representation in any event.  In March this issue was being investigated further.

ix) As to the position of the Guardian’s representative everything that I have said about the position of the judge applies in at least equal measure to the guardian’s solicitor if not more so. The guardian’s statutory role is to promote the welfare of the child. It is no part of the roles of the Guardian or of the children’s solicitor to adopt the case of one party in cross examination or argument. After the fact finding case is resolved it is essential that both parties retain confidence in the guardian and in the institution of CAFCASS. I therefore cannot see that the Guardian or the child’s solicitor could be expected to conduct cross examination on behalf of this Father.

The final point is saying, in very careful terms, that in order for the truth to be determined about these allegations, mother and father would both have to give evidence. Father would be cross-examined by a barrister – a trained professional not emotionally connected to the case (and in this case, I note, a very good and skilful one, who sadly won’t be able to comment on this case).  Mother, however, would be cross-examined by father – leaving him at a disadvantage because there’s not equality of arms, but also making it much more of an ordeal for both of them.

You simply can’t cross-examine on an allegation like this without putting to the mother that her allegations aren’t true, that she has made them up, that they are malicious. You can’t do it without going into some detail. You can do that as gently and sensitively as you can – it is still not a nice experience. If the person asking the questions is the subject of the allegations, then it is ghastly for everyone.  This is why in crime, it isn’t possible to represent yourself on some criminal charges (such as sexual offences)

s34 Youth Justice and Criminal Evidence Act 1999

34 Complainants in proceedings for sexual offences.

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—

(a)in connection with that offence, or

(b)in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.

There were damn good reasons for that – and I’d suggest that the same good reasons mean that you want to avoid it if at all possible in family cases too.

Obviously it can’t be that the lawyer brought in to represent the child can do this on father’s behalf – the father isn’t his client. That’s not someone frankly and fearlessly fighting his case for him.

Could the Judge do it? That made the Judge uneasy, and rightly so.

7. I am now going to quote from H v L & R. A similar issue arose in H v L & R [2006] EWHC 3099 (Fam) and Wood J said this at paragraph 24 about the prospect of a Judge conducting questioning of the complainant in a case where there was sexual allegations. “…for my part I feel a profound unease at the thought of conducting such an exercise in the family jurisdiction, whilst not regarding it as impossible. If it falls to a judge to conduct the exercise it should do so only in exceptional circumstances.”

8. I respectfully agree with Wood J and therefore, in January, asked the Legal Aid Agency to think again. As matters now stand, it seems highly unlikely that legal aid will be granted.

Sadly, you may detect from the final sentence that the Judge is not optimistic that this will work. Legal Aid Agency and ‘see reason’ aren’t concepts that go hand in hand.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

21 responses

  1. Article 6? It is going to happen and perhaps very soon.

    • What I meant, of course, is that the declaration of incompatibility is going to happen and perhaps very soon. When those responsible for the fine mess they have got themselves into are burnt at the stake I’m going to come and toast marshmallows.

  2. Jerry Lonsdale

    First of all two apologies here, 1 for it not relating to family matters, and second for the length of post, the equality of arms is something I have very recently raised in a Parliament Petition, you will understand why I have posted it here after reading the contents, it is a very important issue, okay not in this case however it is especially important when a humble person is up against the might of the State………

    The Appeals Process against the Sanctioning and Removal of State Benefits
    To the Honourable the Commons of the United Kingdom of Great Britain and Northern Ireland in Parliament assembled.

    The Humble petition of Jerry Lonsdale, a Lay Advocate/McKenzie Friend residing in Merseyside, England,

    Declares that, the Petitioner’s client, Miss D residing in Merseyside, England, who was a Litigant in Person, found herself in severe hardship for a period of over two years following significant delays in the determination of her appeal(s) against sanctions placed upon her by the Department of Work and Pensions, thus, accumulating in the none receipt of state benefits for these said periods:-
    1. 20/04/2012 – 03/05/2012
    2. 27/04/2012 – 25/10/2012
    3. 11/05/2012 – 08/11/2012

    The Petitioner assisted Miss D throughout the whole of the appeals process, over two years, which reached its conclusion on the 6th day of March 2014, the concluding decision was the Appeal was allowed and the sanctions were wrongly applied.

    The Petitioner asserts that those hardships faced by his client as well as the lack of Legal Aid assistance further compounded the difficulties in the way in which his client was able to pursue her such appeal to its conclusion.

    The Petitioner recognises that there is no legal aid support for those people who wish to argue against a sanction or sanctions made against them, through the Tribunal Process, The Petitioner believes that it is difficult for someone to believe the equality of arms when a Litigant in Person is challenging the appealed decisions, alone, whereas in matters contained within this petition are opposed or challenged by the respective departments, notably the Department for Work and Pensions, those oppositions are progressed through the process by the use of Tax Payer funded Counsel or Representing Officers.

    The Petitioner raises that, in this specific appeal, the Department for Work and Pensions failed on all occasions to attend any preliminary, or directional hearings, nor was there any Representing Officer present during the final hearing of the said appeal, despite the requests made by Her Gracious Majesties Courts and Tribunals Service, on six separate occasions, over a 2 year period, the respective department failed to communicate or respond to those requests made by HMCTS, and, failed to attend on all six reported occasions.

    The Petitioner raises that, during a directional hearing on the 25th May 2013, the Tribunal Judge, Mr Cooke, requested that, the Secretary of State for Work and Pensions, the Rt. Honourable Iain Duncan Smith MP do attend at the next timetabled hearing in order to explain the notable failings of his department, again the Petitioner notes that his attendance did not happen, however, the respective Department simply applied to the Tribunal for a stay of proceedings.

    The Petitioner asserts that from the 25th May 2013 until the conclusion of the appeal on the 6th March 2014 the Department for Work and Pensions applied on four separate occasions for a stay of proceedings, those stays were granted because of the Department’s exclusive powers contained within Section 26 of the Social Security Act 1998 to stay, any and all appeals within that calendar years legislation, pending the outcome of a test case, the Petitioner asserts that, that was an abuse of power due to the Petitioner’s Clients Appeal which fell outside the parameters of the test case and was made significantly prior to that of the test case being made, and, that the test case was challenging the consequential years legislation, that year being 2012 and not 2011 as in the Petitioners Clients Appeal.

    The Petitioner had applied for the Tribunal Court not to accept the application made for the stays applied for by the Department of Work and Pensions, however, until the start of this year, the Petitioners applications were not responded upon.

    The Petitioner wholeheartedly asserts that, due to the significant delays in reaching the conclusion of his Client’s Appeal, Miss D suffered undue and severe hardship and was prevented from concluding her appeal matters in a time frame that reduced those hardships faced. The detrimental effect further compounded Miss D’s place in society in that she was on many occasions destitute and in significant risk of losing her home due to the sanctions placed upon her by the Department of Work and Pensions.

    The Petitioner therefore requests that the House of Commons Justice Committee investigates the procedures that are used within the English and Welsh Tribunal Courts, and that the House of Commons Justice Committee calls for the provision of independent legal assistance for those people who wish to appeal against Department of Work and Pensions Sanctions, The Petitioner also requests that the same committee urgently review the benefit appeal process in the view that delays and not attendance by Representing Officers does not further delay any of the appeal process similar to those aforementioned above.

    The Petitioner further requests that the House of Commons Work and Pensions Committee investigates procedures and formulates fresh legislation for when people who are faced with applied Sanctions, do not face compounded and further hardships until the outcome of any applied appeals are concluded, in that, the person appealing should still be entitled to receive State assistance through a state benefit, including any required Housing Benefit.
    The Petitioner finally requests that the House of Commons Work and Pensions Committee make available a direct compensation scheme open to those people who through no fault of their own are faced with those difficulties outlined within this petition, specifically, those people significantly affected by the noted failing state benefit appeal processes, most notably, when an appeal is found in favour of the appellant, costs incurred by the appellant should be recoverable and compensation should be duly made available to the appellant.
    Signed on this Day, the 7th of March in the year 2014
    Mr Jerry Lonsdale, the Petitioner.

    Again apologies for it not being family related.

    The Equality of arms is something that seriously concerns me and has done for many moons, I am forever called upon almost hourly these days because of the simple issue of one of the parties being alone, when others have representation in the frightening world of the court and legal process, okay, most of my work is in the Family Law Arena however it is becoming such that the requests for assistance far out weighs the hours in the day, I feel that my work is a simple answer to a prolific issue, it is a very hard hitting debate that must be had, a sticking plaster cannot and should not be used to cover the wound from a lost limb.

  3. Ashamed to be British

    Interesting stuff …

    Can I just ask, on the subject of “This is why in crime, it isn’t possible to represent yourself on some criminal charges” – would that cover instances of crimes that are often (IMHO wrongly) heard by family courts, for example, child abuse, domestic violence, harrassment – these are all crimes that would be heard in criminal court if children weren’t involved (except child abuse)

    The family courts shouldn’t be hearing criminal cases, the local authority spend enough time saying “don’t confuse criminal with family law” and now the accused doesn’t get to LIP?

    Secondly …
    “a judge asking questions on behalf of Father”

    W
    T
    F

    • Jerry Lonsdale

      Ashamed, its nothing new that a Judge may ask questions on behalf of say a Father, whether rightly or wrongly, it can sometimes be of great benefit to the Litigant In Person in understanding the direction of the Judge

    • The criminal charges that you can’t represent yourself on are the sexual ones – that was changed as a result of some trials where a person accused of rape sacked their lawyers and cross-examined the alleged victim.

      On Judges asking questions – it is not unusual for a Judge to ask their own questions in a case, and it is generally very helpful. It is fairly unusual for a Judge to ask questions specifically for one side, but it does sometimes happen where one side is a litigant in person and what would be (for a lawyer) an obvious question to be put to a witness doesn’t end up being put.

      • Ashamed to be British

        I can understand that scenario and on reflection, it is only right

        My problem with this, is that many mothers do alledge sexual or physical abuse in order to move on without dad in the children’s lives, if he is not found guilty in a criminal court, how can it be right to bring it up and use it as a negative in a family court, the whole thing should be dismissed, never spoken of again and certainly not be used as a case to remove him from dad’s life.

        A solution would be, I suppose, exoneration in the criminal court, but even then the LA take no notice and use it as a reason of ‘risk of harm’ – it just pisses me off as to how easy it is for a man to find himself in this position, personally I would jail the mother for trying to ruin his life

      • It gets brought up time and again (usually by Ian, then ignores the very clear replies).

        In the criminal courts an offence must be proved to make the jury (or lay magistrates) sure. That is the same as saying ‘beyond reasonable doubt’.

        In the civil and family courts, facts must be proved on the balance of probabilities. That is the same as saying ‘more likely than not’.

        You give the example of physical abuse. In any given dispute, it may be that there is not enough evidence that can be admitted in the criminal courts to make a jury or bench of magistrates sure that an assault occurred. But there may be enough admissible evidence to say it is more likely than not an assault occurred.

        While I appreciate there are people who say the family courts shouldn’t take action based on ‘more likely than not’, I don’t see how you can have a child-focused family justice system that will not do anything when, having heard the evidence of all parties, the court concludes it more likely than not (for example) there has been physical abuse.

      • Ashamed to be British

        That, in essence would be fair, if the rules were followed, the burden of proof is on the accuser, however the family courts usually expect the accused to prove they haven’t, how do you do that? And why should you?

  4. No, ashamed, the restriction on cross-examination in person only applies in the criminal courts. The court appoints a lawyer to cross-examine on the defendant’s behalf. There is nothing similar in the civil or family courts. The thought that a man accused in those courts of d.v. and of being controlling and abusive – and who might be guilty as charged – being allowed to cross-examine in person is appalling but I don’t see how the court can refuse to allow it. And I fear he must be given more latitude than a professional would be given.

    • Ashamed to be British

      Thats my point really, its a criminal matter, so should be heard in criminal court, where rep would be an automatic right

  5. Many actions are both criminal and a breach of the civil law. Murder, theft, arson, rape, and d.v. – to name but a few.

    • Ashamed to be British

      But not to be herd in a family court, it should be deferred

      • Ashamed to be British

        Heard … its been a long day

      • The decision to prosecute effectively lies with the police and CPS. It is quite common for those agencies to take the view they don’t have sufficient prospects making a jury or lay bench sure, but where the case may be proved on the civil standard.

        It boils down to the point that Ian Josephs makes constantly, i.e. whether it is right to make orders in family proceedings in circumstances where it is more likely than not that X happened, but where there is insufficient evidence to make a jury sure.

        I’d imagine there will be a judicial review of one of these cases in due course.

    • Ashamed to be British

      I dunno, I hold little confidence, the LA have the attitude that just because the CPS refuses to bring it to court, you are still guilty, there just isn’t enough evidence, sadly I’ve been there when completely innocent, the SW actually said I ‘DID’ do it

  6. Jerry Lonsdale

    One Question I would like to raise here, how many case judgements or Judges comments have actually influenced the powers that be in the L.A.A, I have been on a couple of cases where a Judge has determined that the L.A.A should fund say an Expert report, however, the L.A.A still become reluctant to provide funding, it would be quite interesting to see the overall scale of this matter, maybe an FOI would be worthy of putting forwards.

  7. I can’t really think of any reported cases that have made the LAA change their mind.

    On the bigger point, I agree with Jim, who puts it very well.

  8. Pingback: Equality of arms – D v K and B 2014 | Ch...

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