A small ray of light is extinguished

Family Law|May 27th 2015

There have been various efforts by various people to plug the gap in legal advice and representation caused by the abolition of legal aid for most private law family matters in April 2013. One of the more ingenious came from the very top when the President of the Family Division Sir James Munby decided that representation for two fathers involved in contact proceedings could be paid for by Her Majesty’s Courts & Tribunals Service (‘HMCTS’).

That decision was followed by His Honour Judge Clifford Bellamy’s judgment in K & H (Children: Unrepresented Father: Cross-Examination of Child), in which he ordered that the cost of an advocate cross-examining a child on behalf of the father be borne by HMCTS, where the father was unrepresented and the child had made an allegation that she had been sexually abused by the father. At the time I said that I felt that the argument for state-funded representation had been stretched too far in K & H, as there the father was financially ineligible to receive legal aid and should therefore (in theory at least) have been able to afford to pay for representation himself.

Of course, the whole idea of the state paying for legal representation via the ‘back door’ was considered by many to be controversial, although for my part I was prepared to go along with it where the relevant party would have been eligible for legal aid, as it seemed that it was only likely to be used in a relatively small number of exceptional cases. Unsurprisingly, one person who was not happy with the idea was the Lord Chancellor, who no doubt saw it as undermining his cost-cutting reform of legal aid, and accordingly appealed the K & H decision.

The appeal was heard by the Court of Appeal at the end of April, and the court’s decision was handed down by the Master of the Rolls Lord Dyson last week. He held that the judge had no power to order HMCTS to provide the funding, and therefore allowed the appeal.

Thus one small ray of light in the post-legal aid darkness was extinguished. However, it was simultaneously replaced by another, albeit perhaps just a flickering ember, at least at this stage.

At the end of his judgment Lord Dyson expressed concern that there may be cases where the proceedings would not comply with Articles 6 or 8 of the European Convention on Human Rights (the right to a fair trial and the right to respect for family life), in the absence of a legal representative to cross-examine a witness. In order to avoid the risk of a breach of the Convention, he said, consideration should be given to the enactment of a statutory (explanatory) 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, i.e. a provision in civil proceedings analogous to similar provision available in certain criminal proceedings.

One would hope that when such a suggestion comes from one of the country’s most senior judges then the Government will listen and act upon the suggestion, although whether this Government will listen and act, we will have to see. If it does, then at least one small but important part of the lacuna created by the abolition of legal aid will have been filled.

Read the appeal judgement here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. Andrew says:

    “A small ray of light is extinguished by John Bolch”

    I think a comma might have helped!

    In the criminal courts a man (usually) accused of d.v. or rape is not allowed to cross-examine the complainant (sometimes improperly described as the victim) in person. If necessary the court has the power to appoint a lawyer to do so – the sort of back-door legal aid which Lord Dyson has in mind.

    But unless and until that happens LIPs in the family court must be allowed to cross-examine the witnesses against them in person. It is their right. Only statute can abrogate it. It may be nasty for the witness and not too good for the cross-examiner, but it is his or her right and that is the end of it. If the opposing side, the accusing side, does not want to expose the witness to it then the witness cannot be called. It’s not rocket science; it’s been working that way for centuries.

  2. Dr. Nigel Miles says:

    Well written and expressed John. At last some common sense. It’s like shouting out. ..”Yes” when you find an NHS Denist.

  3. A week in family law: ending adoption delay and more by John Bolch – Marilyn Stowe Blog | Law News says:

    […] An appeal by the Lord Chancellor against an order that Her Majesty’s Courts & Tribunals Service (HMCTS) pay the cost of an advocate cross-examining a child on behalf of an unrepresented father has been allowed by the Court of Appeal, which held that the court had no power to order HMCTS to provide the funding. However, the Master of the Rolls Lord Dyson suggested a change in the law should be considered to make public funding available to appoint a lawyer where cross-examination is required in certain cases. Hopefully, the government will act upon this suggestion. […]

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