Re K and H (Children: unrepresented father: cross-examination of child)
| Jurisdiction | England & Wales |
| Judge | Judge Bellamy,OR |
| Judgment Date | 05 January 2015 |
| Neutral Citation | [2015] EWFC 1 |
| Court | Family Court |
| Docket Number | CASE No: LE13PO1029 |
| Date | 05 January 2015 |
[2015] EWFC 1
IN THE FAMILY COURT SITTING AT LEICESTER
His Honour Judge Clifford Bellamy
sitting as a Deputy High Court Judge
(judgment handed down on 5th January 2015)
CASE No: LE13PO1029
Miss Katie Miller (instructed by LDJ Solicitors) on behalf of the mother
Miss Philippa Whipple QC (instructed by the Treasury Solicitor) on behalf of the Lord Chancellor
These proceedings relate to two children, K, a girl aged 5, and H, a boy aged 4. Their parents are SD ('the mother') and JT ('the father'). In July 2013 the mother's older daughter, Y, made a disclosure to her teacher that she had been sexually abused by the father. The father denies that allegation. Before the court can consider the father's future contact with K and H it is important to establish whether Y's allegation is true. A finding of fact hearing is listed to begin on 14 th January at which Y will give oral evidence. Whereas the mother is legally aided, the father is a litigant in person. His status as a litigant in person raises two important questions. Firstly, who should cross-examine Y? Secondly, and more specifically, does the court have the power to order Her Majesty's Courts and Tribunals Service ('HMCTS') to pay for legal representation for the father limited to cross-examination of Y? This judgment addresses each of those issues.
On 10 th December I gave leave to the Lord Chancellor to intervene. Miss Philippa Whipple QC appears on behalf of the Lord Chancellor. Miss Katie Miller appears on behalf of the mother. I have heard full argument on the relevant issues. I am grateful to both counsel for the assistance they have provided.
Background
The parents were in a relationship together for around five years. The relationship broke down in the summer of 2013.
The mother has two older daughters from a previous relationship, Y, now aged 17, and S, now aged 14. In July 2013, following her disclosure of abuse, Y was interviewed by the police in accordance with the guidance set out in Achieving Best Evidence. In her video-recorded interview Y spoke of occasions when the father had touched her breasts and her buttocks.
The father was arrested and interviewed. He denied the allegations. In August 2013 the police decided not to take any action against him.
On 12 th September 2013, the mother issued an application for residence orders in respect of K and H. That same day, on a without notice basis, the court granted a prohibited steps order prohibiting the father from removing K and H from the care of the mother.
On 15 th October 2013 case management directions were given by a circuit judge. In the interim, residence orders were granted to the mother together with an order permitting the father to have contact with the children at a contact centre. Those interim orders remain in force.
On 18 th July 2014 further case management directions were given by a Recorder. Concern about two of the Recorder's directions prompted staff to refer the file to me. It is unnecessary for me to set out those concerns. It is sufficient to record that I have been responsible for the case management of this case since August 2014.
These proceedings have been ongoing for fifteen months. It is unnecessary for me to set out the litigation history. However, it is appropriate that I should acknowledge that the delay has been excessive and without obvious justification. Though not a subject child, the delay has been and continues to be unsettling for Y as she prepares to take her A-level examinations this summer.
Oral evidence from Y
The father's position has been that the court should require Y to give oral evidence at the finding of fact hearing to enable her account to be challenged. Guidance on the approach to the determination of that issue is to be found in Re W (Children)(Abuse: Oral Evidence) [2010] UKSC 12. To assist me to come to a decision I directed Cafcass to meet with Y and prepare a short report. This piece of work was undertaken by an experienced Cafcass officer, Jo Swaby. In her report, dated 1 st September, Ms Swaby said that,
'Y does not want to give oral evidence at the finding of fact hearing…However, she is competent and able to give oral evidence if this is felt necessary. She has no special needs or learning difficulty and no discernable mental health issues…She declined the use of screens or video link if she is required to give evidence and would prefer to face the father in open court…She would struggle if she were to be cross examined by the father and would be anxious at the prospect of this…there is no compelling reason for why she should not give oral testimony…I recommend that the Court appoints an intermediary to cross examine Y if she is required to give oral evidence, as it will be extremely abusive for the father to do this and may cause Y emotional harm.'
I concluded that Y should give oral evidence at the finding of fact hearing.
Should the father be allowed to cross-examine Y?
In December 2011 the Family Justice Council published Guidelines in relation to children giving evidence in family proceedings. Those guidelines are the end result of the deliberations of a working party set up by the Family Justice Council as a result of a referral from the Court of Appeal in Re W [2010] EWCA Civ 57. The Guidelines give detailed guidance on the pre-hearing preparation required when a decision has been made that a child should give evidence in court together with equally detailed guidance on the approach which should be followed in court in order to improve the quality of the child's evidence and minimise the risk of harm to the child.
It is unnecessary to refer to the guidelines extensively. However, two passages are of particular importance in the context of the issues I now have to determine: The guidelines state that,
'17. A child should never be questioned directly by a litigant in person who is an alleged perpetrator…
21. All advocates have a responsibility to manage the questioning of a child witness fairly. However the ultimate responsibility for ensuring that the child gives the best possible evidence in order to inform the court's decision rests with the tribunal…'
Paragraph 17 appears to assume that the court has the power to forbid a party who wishes to conduct his own case from examining or cross-examining a witness. Whether the court has that power is an open question. It is a question which does not fall to be determined in this case given that the father is very clear that he does not wish to cross-examine Y himself. He wishes to be legally represented either generally or, at least, limited to cross-examination of Y.
I approach the remainder of this judgment on the basis that the father should not cross-examine Y. What, then, are the alternatives?
Legal Aid
Parliament has provided a scheme for public funding of litigation. This is contained in the Legal Aid Sentencing and Punishment of Offenders Act 2012 ('LASPO'). Section 9 and Part 1 of Schedule 1 set out the scope of civil legal aid. The father's case is out of scope. Although s.10 gives the Director of Legal Aid Casework discretion to make 'an exceptional case determination' granting legal aid to a litigant in circumstances which would otherwise be out of scope, it is clear from the recent decision of the Court of Appeal in R (on the application of Gudanaviciene & ors) v The Director of Legal Aid Casework and The Lord Chancellor [2014] EWCA Civ 1622 that exceptional case funding can only be made available to those who are able to satisfy the usual means and merits tests:
'56. It can therefore be seen that the critical question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness. The answer to this question requires a consideration of all the circumstances of the case…Thus the greater the complexity of the procedural rules and/or the substantive legal issues, the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that article 6(1) will require the provision of legal services (subject always to any reasonable merits and means test).' (emphasis supplied)
The rules governing the determination of a person's financial entitlement to legal aid are set out in the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 ('the Regulations'). The rules are complex. To be financially eligible for legal aid the father would need to have a disposable income of not more than £733 per month. The father is in full-time employment. He says that he earns £1350 net per lunar month (approximately £1460 net per calendar month). For assessment purposes it would appear that his only allowable deductions are rent (£400 per month) and child support (£100 per month). That leaves him with a disposable income of £960 per month, greater than the maximum permissible.
Whilst that calculation has not been undertaken with the sophistication and refinement required by the Regulations, I am satisfied that it is sufficiently reliable to indicate that the father is financially ineligible for legal aid. In those circumstances the possibility of exceptional case funding under s.10 of LASPO does not arise in this case.
Should the father pay for his own representation?
On behalf of the Lord Chancellor, Miss Whipple QC submits that as the father is financially ineligible for legal aid it follows that it is a matter of personal choice whether he chooses to pay for representation. I do not accept that proposition. Whereas inability to pay for legal representation is demonstrated by having a disposable income below the maximum allowed by the Regulations, it does not follow that...
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