STOP PRESS – Proactive role should be taken by the judiciary in the absence of representation and funding.
The Court of Appeal has recently overturned the decision of His Honour Judge Bellamy in Re K-H  EWCA Civ 543. Proceedings commenced in the Family Court sitting at Leicester and concerned arrangements for contact between the Father and his children, K and H (now aged 6 and 4). The Mother’s eldest child, Y, alleged that she had been sexually abused by the Father. His Honour Judge Bellamy determined that is was important to consider whether Y’s allegation was true and a fact find was ordered for 14th January 2015, with Y to attend and provide oral evidence. The Mother was legally aided and therefore able to have representation. The Father was in person, unable to obtain legal aid or afford representation.
His Honour Judge Bellamy decided that “(i) it was not appropriate for the father to cross-examine Y (in fact he did not wish to do so); (ii) it was not appropriate for him (the judge) to put questions to Y to test her allegation against the father; (iii) the court should arrange for a legal representative to be appointed to cross-examine Y on behalf of the father; and (iv) the costs of the legal representative should be borne by Her Majesty's Court and Tribunal Service ("HMCTS")” (para 3). Consideration was given to Q V Q  EWFC 31,  1 WLR 2040 , notably para 79 in the Judgment, where Sir James Munby observed “In the ultimate analysis, if the criteria in section 31G(6) are satisfied, and if the judge is satisfied that the essential requirements of a fair trial as required by FPR 1.1 and Articles 6 and 8 cannot otherwise be met, the effect of the words "cause to be put" in section 31G(6) is, in my judgment, to enable the judge to direct that appropriate representation is to be provided by – at the expense of – the court, that is, at the expense of HMCTS.”
The Lord Chancellor appealed the decision. The Court of Appeal upheld the appeal and found there no power for the Judge to order HMCTS to provide funding, disagreeing with the approach taken in Q v Q. At paragraphs 60 and 61, the Court of Appeal stated “In a simple straightforward case, questioning by the judge is likely to be the preferred option and it should present no difficulties. The judge will know what the unrepresented party's case is. It may be helpful for the judge to ask him or her to prepare written questions for the court to consider in advance. Sometimes, unexpected answers may be given to the judge. These may require the judge to ask the unrepresented party to comment on the unexpected answers and to suggest supplementary questions for the Judge's consideration. In my view, in the present case, which is fairly straightforward, the judge should probably have decided to conduct the questioning himself. I am in no doubt that the nature of this case is such that there were options available to the judge which would have ensured a fair hearing and vindicated the article 6 and 8 rights of the father and K and H’’.
The Court of Appeal acknowledged that there would be cases where it would be inappropriate for the questioning to be undertaken by the judge or clerk- “I acknowledge that there may be cases where the position is different. I have in mind, for example, a case where the oral evidence which needs to be tested by questioning is complicated. It may be complex medical or other expert evidence. Or it may be complex and/or confused factual evidence, say, from a vulnerable witness. It may be that in such cases, none of the options to which I have referred can make up for the absence of a legal representative able to conduct the cross-examination. If this occurs, it may mean that the lack of legal representation results in the proceedings not being conducted in compliance with article 6 or 8 of the Convention. This is the concern expressed by Sir James Munby at para 76 in Q v Q. In order to avoid the risk of a breach of the Convention, consideration should be given to the enactment of a statutory provision for (i) the appointment of a legal representative to conduct the cross-examination and (ii) the payment out of central funds of such sums as appear to be reasonably necessary to cover the cost of the legal representative, i.e. a provision in civil proceedings analogous to section 38(4) of the Youth Justice and Criminal Evidence Act 1999 and section 19(3)(e) of the Prosecution of Offenders Act 1985. (para 62)”.
The decision suggests the need for a proactive role to be taken by the judiciary in the absence of representation and funding. However, the Court of Appeal acknowledged the need for a statutory provision for family proceedings as found in criminal legislation. Given the current stance on legal aid, it remains to be seen whether one will be enacted.