State should pay for representation and witnesses in private child disputes

31 August 2014 by Rosalind English

Q v Q ; Re B (a child) ; Re C (a child) [2014] EWFC 31 – 6 August 2014 –  read judgment

Public funding is not generally available for litigants in private-law children cases, and no expert can now be instructed in such a case unless the court is satisfied, in accordance with section 13(6) of the Children and Families Act 2014, that the expert is “necessary” to assist the court to resolve the proceedings “justly”.   As the President of the Family Division observed, restrictions on legal aid in certain circumstances has led to a “drastic” reduction in the number of legally represented litigants:

The number of cases where both parties are represented has fallen very significantly, the number of cases where one party is represented has also fallen significantly and, correspondingly, the number of cases where neither party is represented has risen very significantly.

All this has led to increased calls on the Bar Pro Bono Unit, which is generally not able to meet the demand.

Sir James Munby P has therefore suggested that the cost of certain activities, such as bringing an expert to court and providing advice to parents accused of sexual offending within the family, should be borne by the Courts and Tribunals Service.  

Background

1. Q v Q (see my earlier post on this case)

The father, a convicted sex offender, sought contact with his son. His public funding had been terminated after two experts had provided reports commenting on the risk that he posed to the child. In the earlier hearing, it will be remembered, the judge suggested that it might be necessary to explore whether there was “some other pocket” to which the court can have resort, in order to ensure a just and fair hearing. The response by the Ministry of Justice to the Court’s question was as expected; that the father in this case had failed to satisfy the statutory merits criteria required to access funding. The position was further exacerbated by the fact that as a non-English speaker he needed an interpreter, a service which is normally paid for by the Courts & Tribunals Service.

2. Re B

Here, the father, who was seeking contact with his daughter, denied the allegation that he had raped the mother. His application for legal aid had been rejected. Since a defendant in a criminal case involving an allegation of sexual abuse is statutorily prohibited from cross-examining the accuser, it is incumbent on the judge to ask such questions as the circumstances allow. By the time of this hearing the Legal Aid Authority had allowed the father public funding after judicial review proceedings were proposed.

3. Re C

The father sought contact and a parental responsibility order in respect of his son. Again, the mother alleged that she had been raped by the father, an allegation which was denied by the father, who was awaiting trial in the Crown Court. An application for “exceptional” funding under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 s.10 had been made, but a decision was still awaited. The PLP contended that this was a case in which it was “necessary” for the father to have legal representation, and accordingly that the absence of legal aid was in breach of his rights under the right to a fair trial under Article 6 and the right to respect for family life under Article 8.

According to the court, the absence of public funding for those too impoverished to pay for their own representation potentially created at least three major problems:

1. the denial of legal advice and of assistance in drafting documents;
2. the denial of professional advocacy in the court room;
3. the denial of the ability to bring to court a professional witness whose fees for attending are beyond the ability of the litigant to pay.

The Court’s decision

Since the issues of immediate concern in Re B had been resolved, only the other two cases required further consideration.As far as Q v Q was concerned,  Sir James Munby concluded that, if there was no other properly available public purse, the cost of dealing with the case justly had be borne by the Courts and Tribunals Service:

It is, after all, the court which, in accordance with the Family Proceedings Rules, has imposed on it the duty of dealing with the case justly. And, in the final analysis, it is the court which has the duty of ensuring compliance with Articles 6 and 8 in relation to the proceedings before it.

Re C raised difficult concerns in that the father was being prosecuted for the offence of rape. The father would therefore need legal advice on a number of complex questions:

Is the father a compellable witness in the Family Court? Can the father take advantage in the Family Court of the privilege against self-incrimination? Can any evidence he gives in the Family Court be used in support of any criminal proceedings? And, what advice should he be given as to whether or not to give evidence (assuming he is not compellable) and as to whether or not to plead privilege (assuming it is open to him to do so)?

If these were public law proceedings, the answers to the first three questions would be reasonably clear. The father would be compellable: Re Y and K (Split Hearing: Evidence) [2003] EWCA Civ 669, [2003] 2 FLR 273. He would not be able to plead the privilege against self-incrimination: section 98(1) of the Children Act 1989. His evidence would not be “admissible in evidence against” him in any criminal proceedings other than for perjury: section 98(2). Nevertheless, there is no definitive answer for private law proceedings and therefore it seemed that none of these issues were ones which the judge could determine without the benefit of legal argument on both sides.

For these reasons, both the absence of adversarial argument and lack of legal advice and representation meant that there had to be a “very real risk” of the Convention rights under both Articles 6 and 8 being breached. The father’s costs in Re C would therefore have to be borne by the Courts and Tribunals Service.

The judge was at pains to emphasise that – the provision of interpreters and translators apart – an order directing that the cost of certain activities should be borne by the Courts and Tribunals Service was an order of last resort. No direction of this sort should be made except by or having first consulted a High Court Judge or a Designated Family Judge. He concluded that

The Ministry of Justice, the LAA and HMCTS may wish to consider the implications. That is a matter for them.

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