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Articles | Tue 2nd Jun, 2015
Where a litigant in family proceedings is unrepresented because he is ineligible for legal aid, can the court direct that the cost of representation be met by H.M. Courts and Tribunals Service? No.
The question has been considered in a small number of cases since restrictions on eligibility for legal aid came into effect in 2013. Until 22nd May 2015, the decisions had been at High Court level. In Re K and H (children)  EWCA Civ 543, the Court of Appeal, led by the Master of the Rolls, held that HMCTS could not be directed to pay for representation.
In Q v. Q  EWFC 7, a father sought contact with his son. The father had convictions for sexual offences on children. Expert reports within the proceedings had concluded that the son would be unsafe in the father’s presence without the father having completed work identified by the experts. The father’s legal aid had been terminated, with the result that he could not pay for the work and he could not meet the experts’ costs of attending court. The father spoke little English and required an interpreter. The President expressed concerns about the fairness to the father of proceeding without representation and invited the Ministry of Justice to intervene and make submissions.
The Ministry declined to intervene, although the Parliamentary Under-Secretary of State wrote to the President to say, inter alia, that “[t]he merits test is a fundamental and long established part of the legal aid system, and ensures that limited public money is focussed on sufficiently meritorious cases and is not available in cases lacking sufficient merit. … I agree with you that further delay should be avoided in this case and, in the absence of a mechanism for funding the appearance of the experts or representation for the father, you will have to decide this issue in the absence of the cross examination you refer to in your judgment.”
A possible solution: section 31G(6)
In a combined judgment on Q v. Q and a number of other cases with similar facts ( EWFC 31), the President had regard to section 31G(6) of the Matrimonial and Family Proceedings Act 1984, inserted by the Crime and Courts Act 2013, which imposes a duty on the Family Court in circumstances where “any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively … [to] 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.” He considered that in certain cases questioning by a judge or magistrate may be appropriate, but in others (such as where the issues are “grave and forensically challenging”) it may not.
In order to comply with the overriding objective and Articles 6 and 8 of the European Convention, the President held that where necessary a judge may direct that there be representation and HMCTS must bear the costs of it.
Re K and H: first instance
The decision was subsequently followed and applied in a handful of cases including Re K and H  EWFC 1, presided over by H.H.J. Bellamy in Leicester. In that case, a father sought contact with two children (K and H). The mother’s older daughter, Y had made an allegation that the father had sexually abused her. The father denied the allegation. He was conducting the proceedings in person because he was “out of scope” for legal aid. He wished to challenge Y’s account in cross-examination. The judge determined that Y should give oral evidence in light of a CAFCASS report stating that there was no reason for her not to give evidence, but that she would “struggle” if cross-examined by the father personally.
The judge rejected an argument that because the father was ineligible for legal aid he must be able to pay for representation. Noting that his “first duty” was to ensure that proceedings are conducted fairly pursuant to the overriding objective, the judge followed Q v. Q and directed that HMCTS should bear the costs of an advocate to cross-examine Y on behalf of the father.
The appeal in Re K and H: section 31G(6) is no answer
The Lord Chancellor, who had intervened before H.H.J. Bellamy, appealed. The father argued that section 1 of the Courts Act 2003 (which requires the Lord Chancellor 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”), when read in light of section 3 of the Human Rights Act 1998, required the Lord Chancellor to provide funding for representation where necessary to prevent a breach of Convention rights.
The Court of Appeal rejected that argument. The Master of the Rolls held that a “clear principle of statutory interpretation [is] that a general power or duty cannot be used to circumvent a clear and detailed statutory code … Any purported use of section 3 of the HRA producing a result which departed substantially from a fundamental feature of an Act of Parliament was likely to have crossed the boundary between interpretation and amendment.” He said that in the Magistrates’ Court a justices’ clerk could ask questions on behalf of an unrepresented party – and after the reorganisation of the Family Court that could occur at any level of tribunal. He also noted that section 31G(6) applied where a party is unrepresented: therefore if he became represented then section 31G(6) would no longer have application.
The (partial) answer
Ultimately, the Court of Appeal considered that there were a number of available options: Y could be questioned by a clerk, or questioned by the judge, or a guardian could be appointed and her advocate could ask questions. The Master of the Rolls noted the “profound unease” which a judge may feel in questioning a witness, but said that such an approach was “unnecessarily cautious”. In Re K and H, he said that the judge should probably have questioned Y: “[i]n a simple straightforward case, questioning by the judge is likely to be the preferred option and it should present no difficulties.”
There was recognition that in a complex case all of the suggested options may be unsuitable, but the Court of Appeal did no more than note that statutory change may be required to remedy that deficiency in the legal aid scheme.
It will be important for litigants in person, and advocates appearing against them, to consider at an early stage of a case whether a lack of representation may present any practical difficulty in the presentation of a case or in cross-examination of a witness. If so, one or more of the ‘solutions’ posited in Re K and H (paragraphs 52 and 60) may bear consideration. There remains no practical answer in a case which is particularly complex and in which judicial questioning and/or questioning on behalf of a guardian would be inappropriate.