Q v Q : as some dust starts to settle…

As some of the dust helpfully thrown up by comments of Sir James Munby P in Q v Q (No 2) [2014] EWFC 31 (6 August 2014) (http://www.bailii.org/ew/cases/EWFC/HCJ/2014/31.html ) begins to settle, it may be worth reflecting on some preliminary points and then – on another day – moving on to human rights issues and how the case can work in practice. For the fathers concerned it should be recalled that Q v Q was but a case management hearing: their applications – with funding or not – are all ahead. And for them I sincerely hope that when their applications are considered the LAA decision-makers have a better understanding of how the law stands in the light of recent Court of Appeal and High Court decisions (see comments of the President in Q v Q and of HHJ Bellamy (sitting as a High Court judge) in Re AB (A Child: Temporary Leave To Remove From Jurisdiction: Expert Evidence) [2014] EWFC 2758 (5 August 2014) http://www.bailii.org/ew/cases/EWFC/HCJ/2014/2758.html ).

This note is intended to be in a series which will consider the relevance of recent case to the funding of family proceedings involving children or domestic abuse (or both). The series starts with some preliminary points which run through most of the judgements (litigants in person, human rights issues, funding of expenses such as expert witnesses). It concludes with reflections on the practical aspects of the current state of the law: how does an applicant compel a government department (eg Ministry of Justice which is responsible for HM Courts and Tribunal Service and Legal Aid Agency (LAA)) to provide funding for a case; and, if able in law to do so, how does the applicant make his/her application?

The funding of cases, costs and legal aid

Recent case law resolves itself into three main areas: cases where the courts consider that a party should be entitled to assistance within the terms of the existing legislation, harsh though a judge may personally consider it to be; cases where a party should have legal assistance to protect other parties to the proceedings; and questions over whether a judge can order representation at public expense (to be covered later in the series).

Much of what has been said is obiter (as Black LJ carefully confirmed in JG v Lord Chancellor and ors [2014] EWCA Civ 656 at paras 64-66; and see ‘Legal aid and payments for an expert in children proceedings’: David Burrows, Family Law [2014] 1185).

(1) Funding and costs: definition and distinction

The distinction between the funding of a case and the costs arising from the proceedings is fundamental to an understanding of all that follows.

Generally the funding of litigation is a matter for the litigant to sort out personally. Funding may be obtained where a person is eligible for state funding (legal aid) or can claim successfully against another party (eg a costs allowance or legal services order under Matrimonial Causes Act 1973 s 22ZA). For example, the funding of a case is the point at issue in each of JG v Lord Chancellor and ors (above) and Q v Q (No 2).

Costs are awarded after the event (Senior Courts Act 1981 s 51(1); CPR 1998 r 44.2), and are in the entire discretion of the court (including in the family court: SCA 1981 s 51(1)(ba)). They may be awarded against a third party (SCA 1981 s 51(3)); and the ‘event’ may be an interim hearing. Whether a third party (eg the local authority in care proceedings) or a complete stranger (eg a government department as suggested by Sir James Munby P in Q v Q (paras 88 to 91)) can be required to fund litigation in the absence of statutory provision is quite another matter. (A local authority may choose to fund, eg carer grand-parents; and the court can order the other spouse/parent to pay a costs allowance/legal services order. Each of these raises quite separate issues outside what is being considered here.) Research on third party funding is continuing and will be for the third part of this series.

(2) Grant of public funding

State funding of litigation is a matter entirely of statutory provision: of law made by Parliament (with a forest of delegated legislation and ministerial guidance); not of judge-made of common law. Under Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012), as with all previous legal aid legislation grant of representation depends on three factors:

(1) The type of proceedings proposed to be issued;
(2) The merit of an applicant’s case; and
(3) The means of the applicant.

Whatever the merit of a case, or the aptness of the claim, if an applicant’s means deny legal aid then no funding will be granted. In the case of ‘special Children Act 1989 proceedings’ (mostly care proceedings) legal aid is available for parties regardless of merit or means.

Of the merits test: it is the drastic clamp-down on merit of applications by the present Government (see LASPOA 2012 s 9; Sch 1 (95 paragraphs); and various delegated legislation – including Civil Legal Aid (Merits Criteria) Regulations 2013) which has created the problems to which published judgements are now drawing attention. A very skimpy fig-leaf is provided by LASPOA 2012 s 10, as will be seen under ‘human rights’ (later in this series).

It now remains to be seen the extent to which Sir James Munby P (hitherto his comments in eg paras 88 and 90 of Q v Q (No 2) are obiter) sets out law which can be made effective. It will be noted that for all his frustrations in Kinderis v Kineriene [2013] EWHC 4139 (Fam), Holman J stopped well short of suggesting that he had any power to remedy the legal aid short-comings in that case (paras 18 and 21).

(3) Public funding to assist other parties to proceedings

Not all funding is for the assistance of a party. It may be required by the court for the protection of a witness. An important feature of Q v Q is the President’s reminder to practitioners of H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 Roderic Wood J, where a father (F), acting in person, sought contact and a parental responsibility order for his 9 year-old daughter, and the question of his cross-examination of the mother’s now adult daughter (X: borderline anorectic and a suicide risk) arose. X alleged sexual abuse by F. In criminal proceedings X would have been protected from cross-examination. In civil proceedings F was entitled to cross-examine (now see also Re A (A Child) [2012] UKSC 60); but who should do this?

Sir James Munby P (at paras 26-31) analyses the options in H v L; though in the end, exceptionally, the Attorney General agreed to instruct an advocate to the court for the limited purpose of conduct of the father’s cross-examination.

Litigants in person and MFPA 1984 s 31G(6)

Some of the problems created by a cases such as H v L and R said Sir James, ‘had been addressed’ by Matrimonial and Family Proceedings Act 1984 s 31G(6) (part of the ‘family court’ additions to MFPA 1984) in relation to family court proceedings (which he deals with at paras 33-34 and 68-79):

(6)Where … 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.

This imposed on the court a duty, where a party is ‘unable to examine’ etc, to deal with the two points at s 31G(6)(a) and (b) (above). But what if an alleged perpetrator wishes to cross-examine, but is unable to do so – as it is thought – ‘effectively’ (para 70)? ‘Cause to be put’ (s 31G(6)(b)) means by someone other than the court (para 77). If a person – such as an alleged perpetrator – does not have his own representation (private or legal aid) and a fair trial (European Convention 1950 Arts 6 and 8; FPR 2010 r 1.1) cannot otherwise be achieved, then:

[79] … 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.

This is the central finding in Q v Q (No 2). It will be a matter for further consideration in these notes as to what extent expenditure by HMCTS can be achieved; and eg whether by order of the court (eg by appointment of an advocate to the court, or by other means). If this can be done, how can such representation can be applied for? And it may need to be born in mind, in this last instance, that the parent may not necessarily want a representative: the court, after all, is acting to protect a witness (as in H v L and R)).

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