Public funding of advocate to the court: not permitted in children proceedings:

In Re K & H (Children) [2015] EWCA Civ 543 ( the Court of Appeal comprehensively allowed the Lord Chancellor’s appeal from Judge Bellamy’s attempt to provide limited funding to assist the court in cross-examination of a 17 year old alleged victim (Yvonne) of an applicant father’s alleged abuse. Thus in March 2015 it was possible to say that the score in the then legal aid cases in the High Court and Court of Appeal was 4-1 against the Lord Chancellor ( ). With the reversal of Re K & H that score is now 3-2: a less optimistic margin for the laid applicants.

Meanwhile, in a no-score contest the Court of Appeal explained the absurdly arcane means by which legal aid may be applied for to deal with representation for committal applications in civil (including family proceedings) (Brown v London Borough of Haringey [2015] EWCA Civ 483: see separate blog).

It must be said that family law, when it comes to consideration of witnesses such as Yvonne, is in a primitive state compared with criminal law and procedure (as touched on below; and see discussion of ‘vulnerable witness’ procedural reform: ). Further, it remains the case that the Court of Appeal did not consider Re K & H in the light of any limited help which the Attorney-General may be able to offer; and that they could do no more – perhaps inevitably – than to urge ‘statutory provision’ for appointment of an advocate to avoid perceived breach of the European Convention 1950 in rare cases where this was demanded.

Victim, child or other vulnerable witnesses: cross-examination in family proceedings

In Re K & H a strong Court of Appeal (Lord Dyson MR, who gave the only judgment, with Black and McFarlane LJJ, who agreed with him) reversed a decision on the funding of an advocate for the court to cross-examine a child witness and alleged victim of sex abuse (‘Yvonne’) by the father in children proceedings. The family courts background to this was that in Q v Q; Re B; Re C (Private Law: Public Funding) [2014] EWFC 31 Sir James Munby P asserted the possibility that a judge might insist that HM Courts and Tribunal Service (HMCTS) could be required by the court to pay for assistance to the court where a perpetrator (alleged or already found guilty) was to cross-examine an [alleged] victim. An April 2014 amendment to Matrimonial and Family Proceedings Act 1984 (MFPA 1984), as part of the setting up of the Family Court, had provided, at s 31G(6):

(6) Where in any proceedings in the family court it appears to the court that any [unrepresented] party is unable to … cross-examine a witness effectively, the court is to-…

(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.

In Q v Q Sir James held that the words ‘cause to be put’ means questioning other than by the judge and explained his reasoning as follows:

[76] …. [what], in section 31G(6), do the words “cause to be put” mean? When section 31G(6) provides that in certain circumstances “the court is to … put” questions, that must mean questioning by the judge or magistrate. In some – probably many – cases that will be entirely unproblematic. But in cases where the issues are as grave and forensically challenging as in Re B and Re C, questioning by the judge may not be appropriate or, indeed, sufficient to ensure compliance with Articles 6 and 8. There is, in my judgment, very considerable force in what Roderic Wood J [said in Re H v L and R (see below)].

[77] The words “cause to be put” must, in contrast, contemplate questioning by someone other than the judge. Now that someone else might be an advocate whom the court has managed to persuade to act pro bono. It might be the guardian, if there is one, or the guardian’s advocate. But there are… great difficulties in expecting the guardian or the guardian’s advocate to undertake this role….

So, said Sir James, what can the court do if the cross-examining party is not legally represented (eg because they are financially ineligible (and cannot afford representation) or do not want representation)? In the criminal courts cross-examination of vulnerable witnesses may be limited (Youth Justice and Criminal Evidence Act 1999 s 22; and see Criminal Procedure Rules 2014 rr 29.8-29.13, especially r 29.9; considered in Safety measures: vulnerable witnesses, Simon Heaney in Family Law Journal at 7). The family court does not provide such protection for children or other such vulnerable parties or witnesses. Sir James therefore concluded:

[79] …. 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.

This conclusion was rejected by the Court of Appeal in Re K & H (at [45]) as explained below.

Facts underlying the appeal

The facts of Re K & H are that in children proceedings there were three children of Jane (none of the following names are theirs):  Yvonne (now aged 17), Kerry (now aged 6) and Holly (now aged 4). Kerry and Holly are full siblings, whilst Yvonne is the mother’s child by an earlier relationship. In July 2013, she said that when she was 15 she was sexually abused by the father of Kerry and Holly (Michael). Michael has always denied the allegation. The proceedings before Judge Bellamy concerned what contact arrangements or orders should be made between Kerry and Holly and their father.

The Court of Appeal explained the judge’s findings as follows:

[2] HH Judge Bellamy decided (rightly) that, before the court could consider the father’s future contact with K and H, it was important to establish whether Y’s allegation was true. A fact finding hearing was listed to begin on 14 January 2015 at which he directed that Y should give oral evidence. The mother was legally aided. Although he had been legally represented from time to time, by the time of the decision with which this appeal is concerned, the father was a litigant in person. He did not apply for legal aid: he appeared not to be eligible for legal aid as he appeared not to satisfy the “means test” set out in the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013.

The judge therefore held as follows:

  • it was not appropriate for the father to cross-examine Yvonne (in fact he did not wish to do so);
  • it was not appropriate for him (the judge) to put questions to Y to test her allegation against the father;
  • the court should arrange for a legal representative to be appointed to cross-examine Y on behalf of the father; and
  • the costs of the legal representative should be borne by Her Majesty’s Court and Tribunal Service (“HMCTS”).

In his conclusions Judge Bellamy had relied on some of the comments of Sir James Munby P in Q v Q (see refs in [16] of Re K & H on appeal; and as explained at eg [23]). The Court of Appeal centred its criticism of Judge Bellamy’s findings ([22]-[45]) and on a review of what Sir James Munby P said in Q v Q (there was no decision in Q v Q). The Master of the Rolls specifically rejected (at [45]) what Sir James said in Q v Q at [79] above.

The court therefore allowed the appeal on the Lord Chancellor’s first ground of appeal ([63]), namely (see [21]): ‘(1) The court has no power to require the Lord Chancellor (via HMCTS or otherwise) to provide funding for legal representation outside the LASPO scheme’; and further that European Convention 1950 Art 6(1) and a right to a fair trial does not generally permit judges any form of exception in terms of funding.

Circumvention of a statutory code

The statutory basis of the father’s argument derived from Courts Act 2003 s 1(1) (that the Lord Chancellor has a ‘duty to ensure that there is an efficient and effective system to support the carrying on of the business of… the family court… and that appropriate services are provided for those courts’); and, he said, that Human Rights Act 1998 s 3 requires the court to interpret s 1(1) as ‘obliging’ the Lord Chancellor to provide funding where this is necessary ‘to prevent a breach of the Convention’. (This is an argument which may work for exceptional case determination funding under LASPO s 10(1): see eg R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622; but it is subject also to means assessment.)

Lord Dyson rejected this argument (paras [27]-[31]) outside the statutory legal aid scheme. For a judge to order funding in this way amounts, he said, ‘to judicial legislation’ ([31]). Reference to a ‘duty’ under s 1(1) ‘cannot be used to circumvent a clear and detailed statutory code’ (para [27]; Credit Suisse v Waltham Forest LBC [1997] QB 362) as in the case of the scheme under LASPOA; and ‘nothing less than clear, express and unambiguous language is effective to levy a tax. Scarcely less important is the requirement of clear statutory authority for public expenditure’ per Lord Bridge in Holden & Co v CPS (No 2) [1994] 1 AC at 33C; and see para [28]).

In words which will doubtless be quoted by Ministry of Justice where any creative funding is proposed by a prospective applicant, and where a party is not financially eligible, Lord Dyson concluded of the scheme under LASPOA:

[31] It is a detailed scheme. I do not consider that it is possible to interpret either section 1 of the 2003 Act or section 31G(6) of the 1984 Act as giving the court the power to require the Lord Chancellor to provide funding for legal representation in circumstances where such funding is not available under a scheme as detailed and comprehensive as that which has been set up under LASPO. The court must respect the boundaries drawn by Parliament for public funding of legal representation. In my view, the interpretation adopted by the judge is impermissible: it amounts to judicial legislation.

Thus, he said, of any power the court might have to compel the Lord Chancellor to fund proceedings, Courts Act 2003 s 1(1) cannot ‘give the court the power to require the Lord Chancellor to incur public expenditure in payment for legal representation in civil and family proceedings’ ([36]).

European Convention 1950 Art 6

Lord Dyson introduced his consideration of any rights which the father might have under European Convention 1950 as follows:

[47] … It is not in dispute that the father has the right under article 6 to a fair hearing. Moreover, since the date of the hearing, the judge has joined K and H as parties and has appointed a children’s guardian. The children also have rights under article 6. Nor is it disputed that the father and the children have rights under article 8 of the Convention which can only be vindicated by their having an effective and correct determination of the issue of whether Y’s allegations are true. This is because, as the judge recognised, a finding that the father abused Y would be relevant, inter alia, in assessing the risk of harm that he poses to K and H and his capacity to meet their needs.

However he qualified this immediately by reference to the relative narrowness of the law in relation to grant to guarantee Convention rights (especially Art 6), considered most recently in R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 at [46] ([49] and [51]; and see ). Before a court could consider whether Art 6 might be breached it must consider its other case management options ([52]), such as:

  • A direction that the party cross-examines only through a legal representative, perhaps subject to findings (as for the father in Re K & H as to his ability to pay for representation);
  • That Yvonne could, in reality, be cross-examined by the judge him/herself;
  • Yvonne could be cross-examined by a ‘justices’ clerk’; or
  • A guardian be appointed for the children and they (it must be assumed) could instruct an advocate to cross-examine.

(The court does not seem to have reflected on the relative cost of (4) as compared with what Judge Bellamy had ordered, and which was the subject of the appeal.)

So what of (2): cross-examination of a witness by the judge? The court was sympathetic as to a judge’s difficulties; but concluded (at [57]) by quoting Lady Hale in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485 at [28] that the important point was that examination of a child be ‘fair’, however it is done – which seems rather to beg the question in issue on the appeal, but not to provide a clear answer as to the meaning of s 31G(6) and how it can be dealt with.

Conclusion: in extremis there is no answer; but what of the Attorney-General?

So what is the judge to do? First the judge must consider the case management options in para [52] (summarised above). If public funding, including exceptional case determination funding (LASPOA s 10) is not available (eg because of the means of the party concerned), and a party cannot be compelled to fund the representation of an advocate to cross-examine, the Court of Appeal in Re K & H can offer no solution.

In extremis, the court accepts the ‘concern expressed by Sir James Munby P in Q v Q (above); but can only suggest fresh statutory provision (in the absence, presumably of the courts or common law being able to assist):

[62] … 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…

And fresh ‘statutory provision’? If it costs money – any money – Lord Chancellors since 2010 have not been provident. It is likely that the Court’s urgings will be ignored, like other judicial urgings on legal aid over the past three years.

This still leaves the Attorney-General (as directed by Roderic Wood J in H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162). That case and the role of the Attorney in assisting the court was not considered here; but that role (Attorney-General’s Memorandum of 19 December 2001; set out in Family Court Practice at p 2869; ) must be considered for the full tattered picture of public funding to emerge.


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