I had imagined that the President would be the first Judge to use the powers he speculated in Q v Q that the Court might have, to make Her Majesty’s Court Service pay the legal costs of a party who would have their article 6 rights breached by being unrepresented. But I was wrong. It was H H Judge Bellamy, sitting as a Deputy High Court Judge (always making my head hurt about whether it is precedent authority or not)
Re K and H (children : Unrepresented father : Cross-Examination of a Child) 2015 (The 2015/1 in bailii’s link suggests it might be the first 2015 reported judgment as well)
http://www.bailii.org/ew/cases/EWFC/HCJ/2015/1.html
Bald facts – private law dispute, allegation about father sexually abusing the child, allegation disputed. Judge ruled that child was a capable witness and should be cross-examined. Dad did not want to cross-examine the child himself and all agreed that this would be bad – the forensic exercise much more serious than a Judge just ‘putting’ things to the child and in effect presenting father’s case.
Lord Chancellor asked to intervene, and represented very ably by Ms Whipple QC (funny how there’s always public money to get the best for the Lord Chancellor, but not for others…)
I’m going to surprise you now. I think the Lord Chancellor should appeal this decision, and I think they should win the appeal.
Why?
Because this isn’t a case of a father who would have got funding pre LASPO now not getting it, and not a case of the Legal Aid Agency being mealy-mouthed about section 10 discretion to grant funding. This man was over the financial limits for legal aid. And not a little bit – he was double the disposable income limit.
Now, that doesn’t mean that he can necessarily afford to pay privately for legal representation, nor that paying privately wouldn’t be expensive and wouldn’t hurt.
But we’ve not had in this country for private law disputes a situation where EVERYONE gets free legal advice regardless of means (we have that for parents in care proceedings, that’s different). There has always been a financial limit – a point at which the State says “you earn too much to get free legal advice” (or more accurately “you earn too much for other taxpayers to be footing your bill for free legal advice”. You might argue until the cows come home about whether that’s right or fair, but it has ALWAYS been the system. This is not a Grayling change, this man would not previously have got free legal advice under any government you care to mention.
Whether it is fair or not, the State has said, there’s a cut-off point – we soften it by saying when you are near it you can still get legal representation but you have to make a contribution to it, but if you’re double the cut off point, you don’t get free legal representation. Nobody in that position ever has, and there weren’t article 6 breaches in any of those cases.
If HMCS are going to fund this man, then they are potentially going to fund many more like him – and more to the point, all those people in the past who had to pay privately for their lawyers are going to rightly feel aggrieved.
The ECHR has never said that States can’t set financial limits on free legal aid and representation, nor where those limits are.
I’m no fan of LASPO, and have been pretty vocal about it, but this isn’t a LASPO failure or a LASPO injustice. This is a flat-out “when someone really needs legal advice and the State limits suggest that they ought to put their hand in their own pocket, should the taxpayer pay instead?”
Just because this bill is coming from HMCS doesn’t mean that the money isn’t ultimately coming from a taxpayer (and frankly, I’d be really, really wary of taking the case on for him because I don’t think whoever does it will ever see a penny – after all, if the Court stiffs you on your bill, what are you going to do about it? Sue? I think the French expression is, “to whom do you complain when it is the Judge who is screwing your wife?”)
I think it is a good judgment, and it is thorough and detailed, but for me, that key point is not given sufficient weight, and for that reason, I’d be expecting it to be appealed and successfully appealed to boot.
suesspiciousminds 
Fascinating Judgement. It will certainly be appealed.
But how would you apply this logic to D (A Child) if that does ever get heard?
Just finished a note on Gudanaviciene; and then in comes this. I think the excellent HHJ Bellamy, you and Whipple QC are all getting in a muddle. You are confusing two things: LASPOA legal aid (which should have nothing to do with this case) and s 31G(6) (and the earlier mag’s cts’ statutory provisions) which enables the court to ’cause’ a witness to be examined eg (as in H&L) bu AG for the court.
I’ve only skum the report; but isn’t that what this case was all about. Father’s ,means and LASPOA are threfore nowt to do wi’it?
Must dash….
The rationale in Q v Q (from whence this comes) is about article 6, and I don’t see how this is an article 6 breach. I think it is a massive stretch of s31G(6) which might just have been borderline if there was an article 6 breach to pay for a person’s legal costs when the State has decided that people of this income don’t get it for free.
This is the bit that I think I would specifically rely on in the appeal
On behalf of the Lord Chancellor, Miss Whipple QC submits that as the father is financially ineligible for legal aid it follows that it is a matter of personal choice whether he chooses to pay for representation. I do not accept that proposition. Whereas inability to pay for legal representation is demonstrated by having a disposable income below the maximum allowed by the Regulations, it does not follow that ability to pay is demonstrated by having a disposable income above the maximum provided for by the Regulations. The person with a disposable income of £734 per month falls on the wrong side of the divide so far as financial eligibility for legal aid is concerned. However, it would be absurd to suggest that such a person is better able to meet his own legal fees than his neighbour with a disposable income of £733 per month.
And s31G(6) if anything, suggests more that the Court should be putting the questions if father can’t.
section 31G(6) of the Matrimonial and Family Proceedings Act 1984, set out in Schedule 10 of the Crime and Courts Act 2013, which came into effect on 22 April 2014:
“Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to –
(a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and
(b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.”
[Paying for a lawyer is something of a stretch of ’cause to be put’, I think]
I think this case is about an alleged perpetrator personally cross examining the vulnerable victim, the child ,in a fact finding something most would regard as repugnant. The order relates to representation for the cross examination of the child victim only not beyond that
It is a good judgement
Difficult to see how you can ensure that the lawyer only advises on the cross-examination of the child witness. How would they know, unless present for other witnesses, how the evidence has emerged on other aspects of the case? And if it is to be limited to counsel just putting father’s questions to one witness, why shouldn’t a father who is twice the financial limits pay for that himself? If this was a pure s10 LASPO case, I’d be supportive of it, but I think it stands or falls on paragraph 18.
Para 17 of these guidelines (A child should never be questioned directly by a litigant in person who is an alleged perpetrator) seems to me to be ultra vires. It seeks to do in the civil courts by “guideline” what it took primary legislation to achieve in the criminal courts. A party has the right to act in person and to cross-examine witnesses in person – and that right can only be taken away by statute.
Hit Post too soon. An alleged perpetrator may be able – all too able – to cross-examine the alleged victim in which case s 31G(6) has no application. It’s about the party, not the witness. The provisions in the criminal courts are far more precise.
One of these days a father who insists on his right to cross-examine the alleged victim is going to ask gently “What you’ve just said is all lies, isn’t it?” and her little face is going to crack and she will cry and cry and cry and say “I’m sorry, I’m sorry, Mummy said I had to say it . . . “.
I saw it once (with counsel questioning, and the defendant was uncle, not father) in a mags’ court. Quite an experience.
It needs to be about the witness, after being faced by threats of killing the dog, mother, father or them ending up in jail, an abused child is not going to suddenly find the strength to be cross examined by their abuser, who we know are very clever manipulators anyway.
You may be right, but that’s not how it is phrased.
The wording is “if it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively” – so as I said it is about the party. At common law the party has the right to act in person and to cross-examine in person and that right cannot be eroded by extra-statutory “guidelines” but only by statute. That has been done in the criminal courts – but then the court appoints a lawyer to cross-examine and that lawyer gets paid. here the judge is expected to act as one party’s counsel which is preposterous and against all principle.
Your comments seems to suggest a prejudgment of who is telling the truth and who is lying, rather than the need for a fair trial and justice
I wonder, however, how far that extends.
If the “abuser”, “who we know are very clever manipulators anyway”, is a single parent, and they end up being convicted of some heinous form of abuse against the child, would you support forced adoption of the child?
Or, having decided that the parent can’t even question the child in court because they are so “manipulative”, would rather they be returned to the “abuser’s” care after they are released from prison?
I’ve not prejudged, I am running with a scenario, just to be clear.
I will never support forced adoption, no, it’s wrong, if there is no family at all who will take the child in, then permanent foster care will suffice, there’s absolutely no need to try to alter a persons identity. The child should also get a say in future plans, if the choice is adoption then I don’t see that as forced.
I cannot see for one second how a parent, or anyone close to the child can be allowed to cross examine them, it’s a conflict of interest, children may be scared or loyal to their loved ones regardless to what they have or haven’t done, you’re not going to obtain a true picture of their circumstance this way, it’s absurd to even suggest it.
Yes Andrew, I understand that there’s a case pending in which the alleged perpetrator (stress alleged) does not want to be legally represented. The witness is entitled to be cross-examined, and the family Court can’t force a person to be represented by a lawyer if they want to do it themselves. (Unlike, as you say, in crime, where the law is that they do not have that option)
s31G(6) is a fudged solution when the better course would have been to say in any situation where a person is to be giving evidence about alleged sexual offences they cannot be questioned by the alleged perpetrator directly. But that would involve the Government ponying up the cash to fund that.