Stretching the argument for state-funded representation

Family Law|January 7th 2015

Well, it didn’t take long before the New Year threw up a case that would be a major talking point amongst family (and other) lawyers. In the hours that followed the publication of His Honour Judge Clifford Bellamy’s judgment in K & H (Children: Unrepresented Father: Cross-Examination of Child), Twitter was awash with lawyers tweeting about it.

The case was another in the new line of decisions on ‘alternative’ methods of funding representation in family proceedings, following the (also much discussed) decision of the President of the Family Division in Q v Q last year. In Q v Q the President indicated that, in the absence of legal aid, legal representation for two fathers involved in contact proceedings could be paid for by Her Majesty’s Courts & Tribunals Service (‘HMCTS’). Judge Bellamy made a similar decision in K & H, in respect of the cost of an advocate cross-examining a child on behalf of the father, where the father was unrepresented and the child had made an allegation that she had been sexually abused by the father.

The rationale behind Judge Bellamy’s decision was that a fair trial required that the child be cross-examined on behalf of the father, but that it was not appropriate for the father to be permitted to cross-examine the child himself, and nor did he wish to do so. It was also not appropriate for the judge to put the questions to the child, and therefore a legally qualified advocate should be appointed to undertake the cross-examination.

What made K & H different from Q v Q, however, was that, unlike the fathers in Q v Q, the father in K & H was financially ineligible to receive legal aid. The monthly disposable income limit for legal aid is £733, whereas this father’s monthly disposable income was £960. That does seem to me to have crossed a line.

Now, I know that just because a person earns more than the legal aid eligibility limit that does not mean that they can easily afford to pay for a lawyer to represent them in court. In fact, when I was practising I often felt that those who earned too much to be eligible for legal aid but too little to easily afford a lawyer were in the worst possible position.

This was a point taken by Judge Bellamy, who felt that the father here could not afford representation, despite his monthly disposable income being more than £200 over the limit for legal aid. He pointed out that the father still had to pay various necessary living expenses from his disposable income, such as food, council tax, water rates, gas, electricity, telephone, clothing, and travel.

However, there must obviously be a financial cut-off point for any form of state funding of legal representation in proceedings such as this. After all, no one would consider it reasonable for the state to pay for a millionaire’s legal representation.

Surely, though, it is for Parliament rather than a judge to decide where that cut-off point should be? After all, the funding ultimately comes from the state, whichever agency actually pays it.

Judge Bellamy felt that to deny this father funding would be a breach of his right to a fair trial under Article 6 of the European Convention on Human Rights. However, if one accepts that it is up to the state to set eligibility limits before it offers funding, that seems to me to be stretching the argument too far. The state only has to foot the bill for a fair trial up to a point – once that point has been passed, the state’s obligation is over.

As I indicated at the beginning of this post, the whole judicial idea of HMCTS funding legal representation in order to make a trial fair is causing quite a stir amongst the legal fraternity. However, if it is limited to just those cases where legal aid would previously have been available, then I don’t think that it should be that controversial. On the other hand, if it is opening up state funding to those who would not previously have been eligible to receive it under the legal aid scheme then that is something different entirely, and surely beyond the remit of the judiciary.

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