H v L

In family proceedings involving serious allegations, the court must preserve both the vulnerable witness’s protection and the litigant’s fair opportunity to test the evidence. Adults are ordinarily expected to give evidence and be cross-examined. Departing from that course is exceptional. Where a litigant in person should not personally cross-examine an adult complainant, the court should consider alternative arrangements, including representation by an advocate. A judge may conduct questioning, but only in exceptional circumstances, because the judge must remain impartial and avoid descending into the arena. The judgment invited urgent statutory reform to provide publicly funded representation in family proceedings on an equivalent basis to the safeguards available in criminal proceedings.

The applicant father sought parental responsibility and contact in relation to his nine-year-old daughter. The proceedings required a fact-finding hearing concerning allegations that he had sexually abused the mother’s older daughter, then an adult, and allegations concerning alcohol, drugs and his general behaviour.

The father was acting in person after losing public funding. The central issue was how the court could obtain a fair and effective testing of the adult witness’s evidence if it was inappropriate for the father personally to cross-examine her. Possible assistance from the child’s guardian, CAFCASS Legal, the Official Solicitor, the Free Representation Unit, the Attorney-General and the judge was considered.

1. Applicable standard and fair trial rights. The allegations had to be proved by the mother on the balance of probabilities, applying Re H (Minors) (Sexual Abuse: Standard of Proof) (AC 563). Article 6 of the Convention protects the fairness of the family trial, including the intrinsic importance of testing evidence and cross-examining complainants.
2. Evidence of adults. Following Re D (sexual abuse) ([2002] 1 FLR 723), children’s evidence may sometimes be received through a good video or audio interview, but adults are ordinarily expected to give evidence and be cross-examined. An adult who does not give evidence is therefore an exceptional occurrence.
3. Available arrangements. The statutory safeguards in the Youth Justice and Criminal Evidence Act 1999, including the prohibition on personal cross-examination and provision for court-appointed legal representation, applied directly only to criminal proceedings. There was no equivalent regular source of representation in family proceedings. The child’s guardian, CAFCASS Legal, the Official Solicitor, the Free Representation Unit and the Attorney-General could not be treated as guaranteed providers of such assistance.
4. Judicial questioning. The judge may exceptionally take over questioning, guided by R v Milton Brown ([1998] EWCA Crim 1486) and R v DeOliveira (15 November 1996). The judge should test accuracy, reliability and possible collusion without becoming a defence advocate or putting a positive case. The practice is undesirable as a routine solution and should be reserved for exceptional circumstances.
5. The court invited urgent statutory provision for publicly funded advocates to cross-examine in appropriate family proceedings, observing that there was no policy distinction between the criminal and family contexts on this issue.