Fair family hearings – according to the Court of Appeal

31 May 2015 by David Hart KC

Re K and H  [2015] EWCA Civ 543, Court of Appeal, 22 May 2015 – read judgment 

Philippa Whipple QC and Matthew Donmall of  1 COR appeared for the Lord Chancellor in this case.  They have played no part in the writing of this post.

Lord Dyson for the Court of Appeal has recently reversed the decision of HHJ Bellamy (see my post here) who had ordered legal aid to help an unrepresented father in family proceedings. The conundrum was that the father wanted contact with his children aged 5 and 4, but a 17-year old step-daughter, Y, told her teacher that the father sexually abused her – which the father denied.

That issue had to be decided first – and understandably the father felt unable to cross-examine Y himself. Hence the judge’s order that the Courts Service (HMCTS) should pay for legal representation for the father limited to that cross-examination of Y.

The question on which the CA and the judge differed was whether legal aid could be ordered outside the statutory scheme set out in  LASPOA 2012 – the problem being that the father earned too much for legal aid.

The judgment below

The judge has been guided by the suggestion by Sir James Munby P in Q v Q that s.31G(6) of the Matrimonial and Family Proceedings Act 1984 may help. This says that a court may “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.” The judge was not taken with the possibility that he or another judge might do the job – again endorsing Sir James Munby P in Q v Q; to the effect that

where the issues are…grave and forensically challenging…questioning by the judge may not be appropriate or, indeed, sufficient to ensure compliance with Articles 6 and 8.

If it was wrong for the judge to put questions, questions should therefore be “caused to be put”, via advocates and at the expense of HMCTS.

The issue of the power of the courts to order this was connected with the human rights question. It is the judges’  job under the HRA to make sure that proceedings before them are conducted justly and in a manner compliant with the requirements of Articles 6 and 8 ECHR.

The Court of Appeal

Power to direct legal aid?

The Court of Appeal roundly disagreed that the courts had the power to order representation outside the LASPO scheme.  Different arguments were put up by various other parties; one said that s.1 of the Courts Act 2003, in imposing a general duty to provide an effective system of courts, could be relied upon, and another relied upon the s.31G(6) “cause to be put” point made by the President.

The s. 1 CA point foundered on the principles that (i) as a matter of statutory interpretation a general power or duty cannot be used to circumvent a clear and detailed statutory code, and (ii) there must be clear statutory authority for public expenditure. Both, said the Master of the Rolls, held good despite the passing of the HRA. This was because the HRA reserved the amendment of primary legislation to Parliament, and that

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.

and

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.

Lord Dyson considered that the provision of legal services cannot be described as coming within the scope of the duty to ensure that there is an efficient and effective system to support the carrying on of the business of a court, and hence s.1 CA 2003 could not assist.

His answer to the s.31G(6) point was assisted by the parliamentary history unearthed by Philippa Whipple and her team. The section was originally about magistrates court (via their legally qualified clerks) helping out with questioning where a party was unrepresented; it could not be used to give that party representation.

The upshot is that the President’s suggestions in Q v. Q did not find favour, and the CA allowed the appeal on the first ground.

 Breach of Convention

The Court went on to discuss whether the judge was right in concluding that a failure to provide legal assistance was in breach of the Convention. It travelled over familiar Strasbourg ground on Article 6, well summarised in Gudanaviciene 

 (ii) the question is whether the applicant’s appearance before the court or tribunal in question without the assistance of a lawyer was effective, in the sense of whether he or she was able to present the case properly and satisfactorily….

(iii) it is relevant whether the proceedings taken as a whole were fair…..;

(iv) the importance of the appearance of fairness is also relevant: simply because an applicant can struggle through “in the teeth of all the difficulties” does not necessarily mean that the procedure was fair…; and

(v) equality of arms must be guaranteed to the extent that each side is afforded a reasonable opportunity to present his or her case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent….

And the requirements of Article 8 were no more demanding than those of Article 6.

The CA did not accept that the only way Y could be fairly and effectively questioned was by an advocate. There were a number of options open to the court : (i) a direction that the order that Y should give oral evidence is made subject to the condition that the father questions her through a legal representative (if he can pay); or (ii) Y should be questioned by the judge himself; (iii) Y should be questioned by a justices’ clerk; or (iv) a guardian should be appointed to conduct proceedings on behalf of K and H.

The CA did not think that the idea of a judge questioning a witness gave rise to “profound unease” – that view was unnecessarily cautious. Lord Dyson thought the present case was “relatively straightforward”, and that the judge should probably decided to conduct the questioning himself. He should ask the unrepresented party to prepare written questions in advance for the court to consider. (The ticklish problems of whether these questions should be shared with others before the hearing and whether their particular formulation could be used against the father were not addressed).

Hence the Court’s conclusion that there were options open which would have ensured a fair hearing and hence vindicated the father’s rights (and indeed those of K and H).

Lord Dyson acknowledged that not all cases would be so simple or straightforward. This part of his judgment is very important:

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. 

So he recommended that, to avoid such a breach of the Convention, consideration should be given to the enactment of a statutory provision for the direction of specific legal aid, modelled on a similar provision applicable to criminal proceedings. This was for Parliament, not the courts.

Conclusion

The statutory construction elements of this judgment seem convincing, but I am sceptical about the suggestion that judicial questioning of witnesses can be anything other than a fraught exercise where the allegation is of sexual abuse. It may give rise to its own unfairnesses, as I have hinted above, however conscientiously done by the judge. A legal adviser would have the opportunity of proper and confidential discussions with a father in these circumstances, and would then decide how best to explore the lines to be taken in cross-examination. How can the judge do any of that given that proceedings must be open and transparent to all those involved? Is he entitled to scrap questions which he thinks it is ill-advised to ask?  All problems now faced and to be faced by judges on a day to day basis in the family courts.

So, if there is no power in the courts to order specific legal aid, there is a real risk that hearings will be in breach of the Convention unless the Government picks up the firm hint from the CA that some statutory amendment is required.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

• How to make family hearings fair
• State should pay cost of representation and witnesses in private law child disputes
• Exceptional legal aid should not be limited to extreme cases – Court of Appeal
• The non-residents legal aid case – LC advised to go for the ball, not his opponents’ shins
• Magna Carta and its progeny 
• Plan to stop non-residents getting legal aid unlawful, rules High Court – Angela Patrick
• Lack of legal aid stalls contact hearing
• Serious fraud trial abandoned because of cuts to legal aid