B (a child) (private law fact finding - unrepresented father)

In exceptionally serious and complex private law fact-finding proceedings, an unrepresented party facing allegations such as rape may require independent legal representation. The judge should not ordinarily be expected to conduct questioning on that party’s behalf, particularly where the allegations are central to the decision and may affect the child’s future relationship with a parent. Such questioning is permissible only in exceptional circumstances. The child’s guardian or solicitor should not be expected to adopt one party’s case in cross-examination or argument, since their role is to promote the child’s welfare and preserve confidence in the guardianship process.

The father applied for contact with his three-year-old daughter. The proceedings involved a fact-finding hearing concerning several serious allegations by the mother, including an alleged rape which the father denied. The father was unrepresented after his application for legal aid was rejected. The court considered whether the judge, the child’s guardian or the guardian’s solicitor could conduct questioning and assist the father during the fact-finding hearing.

The court also considered the relevance of statutory provisions concerning cross-examination and the proposed provisions in Schedule 10 to the Crime and Courts Act 2013.

1. Exceptional nature of the proceedings. The allegations were sufficiently serious and central to the fact-finding hearing that the resulting factual findings could affect the relationship between the child and her father for many years.
2. Need for representation. In a complex fact-finding case, the respondent to allegations of this seriousness should receive legal advice. A judge cannot provide that advice while remaining the impartial decision-maker. The judge may also be unable to ask questions on behalf of an unrepresented party in a way that adequately reflects that party’s case, particularly where the allegations require contextual analysis and detailed challenge.
3. Judicial questioning. The court respectfully agreed with the approach in H v L & R that a judge conducting questioning of a complainant in a sexual-allegation case should do so only in exceptional circumstances. The proposed statutory provisions in Schedule 10 of the Crime and Courts Act 2013, although considered, were not yet in force and did not appear sufficient to meet the justice of this case.
4. Role of the guardian. Neither the guardian nor the child’s solicitor should conduct cross-examination or argument on behalf of the father. Their statutory role was to promote the child’s welfare, not to adopt one party’s case. Maintaining both parties’ confidence in the guardian and CAFCASS was also important.
5. The court invited the Legal Aid Agency to reconsider the father’s application urgently. The anonymised judgment was released for publication subject to strict preservation of the anonymity of the child and family.

First-instance decision. No prior appellate decision is stated in the judgment.