Family Law organisation Resolution has called for a new ‘statutory provision’ (explanatory legal declaration) in response to the Court of Appeal’s recent decision in the case of Re K and H Children.
In the original case, His Honour Judge Bellamny had ruled that HM Courts and Tribunals Service (HMCTS) should bear the costs of legal representation for a man who had been accused of sexual abuse. The Lord Chancellor successfully appealed the funding decision.
Resolution said the successful appeal highlighted some of the problematic issues around domestic abuse cases where one of the parties is a litigant in person. It was not appropriate for the father to cross-examine the child himself, so it had been suggested the judge could have taken on this role. But Jane Wilson, Chair of Resolution’s Domestic Abuse Committee, said that this “could give the impression to the victim that the judge is on the side of the alleged perpetrator.”
The situation was now “less than clear”, she added.
She noted that Judge Bellamy’s call for advocates to be funded by HMCTS has been supported by Sir James Munby, President of the Family Division. It also pointed to the Vulnerable Witnesses and Children Working Group report, which declared that lack of support for witnesses can leave them vulnerable and open to intimidation.
Jane Wilson said:
“I would hope that neither the Lord Chancellor nor HMCTS are in the business of denying justice to people. So the only conclusion is that support must be given to enable a fair decision to be reached.”
The law needs to change, Resolution insist. Funding is available in the criminal courts for vulnerable witnesses to receive representation and the same provisions should be available in the family courts when domestic abuse has been alleged.
The appeal judgement Re K and H (Children) can be read here