K and H (Children)

A family court has no power to require the Lord Chancellor or HMCTS to fund legal representation for a civil litigant outside the detailed legal-aid scheme created by Legal Aid, Sentencing and Punishment of Offenders Act 2012. Neither the general duty in the Courts Act 2003 nor section 31G(6) of the Matrimonial and Family Proceedings Act 1984 can be interpreted so as to create that power.

Section 31G(6) permits the court to put, or cause questions to be put, for an unrepresented party. It does not provide publicly funded advocacy. A fair hearing may instead be secured through sensitive judicial or justices’ clerk questioning, or other case-management measures. In an unusually complex case, however, the absence of representation may create a Convention difficulty which requires a legislative solution.

In private-law children proceedings, a teenage half-sibling alleged that the father of K and H had sexually abused her. The allegation had to be determined before future contact between the father and the younger children could be decided.

The father was a litigant in person. He was financially ineligible for legal aid, but the Family Court found that he could not afford private representation. It held that neither the father nor the judge should question the witness, and ordered that an advocate be appointed, at HMCTS expense, solely to cross-examine her.

The Lord Chancellor appealed from HHJ Bellamy’s decision in the Family Court, [2015] EWFC 1. The central issue was whether the court had power to require public funding for that representation outside the statutory legal-aid scheme.

1. Appeal allowed. The Family Court had no power to require the Lord Chancellor, through HMCTS, to fund an advocate for the father outside the legal-aid scheme.

2. Legal Aid, Sentencing and Punishment of Offenders Act 2012 created a detailed and comprehensive code governing public funding for civil representation. A general statutory duty to support the business of the Family Court could not circumvent that code. Nor could section 3 of the Human Rights Act 1998 be used to read such a funding power into either the Courts Act 2003 or the Matrimonial and Family Proceedings Act 1984. That construction would depart from a fundamental feature of the legislation and amount to judicial legislation.

3. Section 31G(6) of the 1984 Act concerns effective examination of witnesses for an unrepresented party. Its words, including “cause to be put”, allow the court to arrange for questions to be put, historically including by a justices’ clerk. They do not authorise an order funding legal representation. The court respectfully disagreed with the contrary view expressed in Q v Q.

4. The court’s discussion of Convention compliance was not necessary to the disposition, but provided guidance. Article 6 does not generally require civil legal aid, and a means test is compatible with it. In this context, the procedural protection required by article 8 is in practice the same as the article 6 requirement of an effective and fair opportunity to participate.

5. A judge should consider all practical case-management alternatives. They include conditional admission of oral evidence, questioning by the judge or a justices’ clerk, and representation of joined children by a guardian. Judicial questioning need not imitate partisan cross-examination. In a straightforward case it will often be suitable if conducted fairly and sensitively. Exceptionally, complex evidence may make those alternatives inadequate; Parliament should consider a civil analogue to the criminal statutory scheme for funded cross-examination.

• Court of Appeal (Civil Division): Allowed the Lord Chancellor’s appeal and held that the Family Court lacked power to order HMCTS to fund an advocate outside the legal-aid scheme: [2015] EWCA Civ 543.

• Family Court sitting at Leicester: HHJ Bellamy, sitting as a deputy High Court judge, directed appointment of an advocate at HMCTS expense to cross-examine the witness for the father: [2015] EWFC 1.