Strand, London, WC2A 2LL
B e f o r e :
|Q v Q|
|Re B (A Child)|
|Re C (A Child)|
The father in Q v Q appeared in person
Ms Judi Evans (instructed by Kelcey and Hall) for the father in Re B
Ms Lucy Reed (instructed by Battrick Clark) for the mother in Re B
Mr Richard Ellis (of Withy King) for the child in Re B
Ms Janet Bazley QC and Mr Julien Foster (appearing pro bono instructed by the Bar Pro Bono Unit) for the father in Re C
Ms Lucy Reed (instructed by Battrick Clark) for the mother in Re C
Mr Stuart Fuller (instructed by local authority solicitor) for the local authority in Re C
Ms Donna Cummins (of Lyons Davidson) for the child in Re C
Hearing dates: 21 May 2014 (Q v Q); 7 July 2014 (Re B and Re C)
Crown Copyright ©
Sir James Munby, President of the Family Division :
"(1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) or (4) is satisfied.
(2) This subsection is satisfied where the Director –
(a) has made an exceptional case determination in relation to the individual and the services, and
(b) has determined that the individual qualifies for the services in accordance with this Part,
(and has not withdrawn either determination).
(3) For the purposes of subsection (2), an exceptional case determination is a determination –
(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of –
(i) the individual's Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach."
"The purpose of section 10(3) of the Act is to enable compliance with ECHR and EU law obligations in the context of a civil legal aid scheme that has refocused limited resources on the highest priority cases. Caseworkers should approach section 10(3)(b) with this firmly in mind. It would not therefore be appropriate to fund simply because a risk (however small) exists of a breach of the relevant rights. Rather, section 10(3)(b) should be used in those rare cases where it cannot be said with certainty whether the failure to fund would amount to a breach of the rights set out at section 10(3)(a) but the risk of breach is so substantial that it is nevertheless appropriate to fund in all the circumstances of the case. This may be so, for example, where the case law is uncertain (owing, for example, to conflicting judgments)."
Paragraph 10 provides:
"Caseworkers will need to consider, in particular, whether it is necessary to grant funding in order to avoid a breach of an applicant's rights under Article 6(1) ECHR. As set below, the threshold for such a breach is very high … will withholding of legal aid make assertion of the claim practically impossible or lead to an obvious unfairness in the proceedings?"
"It is difficult to see that, if certainty is the appropriate test, s.10(3)(a) could ever apply. It does not seem to me that certainty is the appropriate test nor does the language used in s.10(3)(a) require it. In order to establish a breach of a human right, an individual has to establish on the balance of probabilities that such a breach has occurred. ECtHR jurisprudence suggests that a high level of probability is required. I see no reason why that should not be applied in s.10(3)(a) since Parliament must be taken to have appreciated that that was how breaches could be established. This seems to me to be the correct approach if s.10(3)(a) is to have any sensible application. Thus if the Director is satisfied that legal aid is in principle needed when its refusal would to a high level of probability result in a breach, s.10(3)(a) is met and means and merits will determine whether legal aid is to be granted and to what extent. It may for example not be necessary to grant legal aid for more than advice, particularly as the obtaining of advice from a competent solicitor may save further cost by persuading the individual that he has no case or enabling him to present his application in a way which enables the decision maker or court to deal with it expeditiously and without the cost incurred in seeing whether a litigant in person does have valid points."
In relation to section 10(3)(b) he said (para 50):
"in Articles from which derogation is possible the risk can properly be considered to be the risk of a flagrant breach which does apply a somewhat higher test than a real possibility or a risk that is more than fanciful. If legal aid is refused, there must be a substantial risk that there will be a breach of the procedural requirements because there will be an inability for the individual to have an effective and fair opportunity to establish his claim … It follows that I do not entirely accept Coulson J's conclusion in [M v Director of Legal Aid and Casework  EWHC 1354 (Admin).] that the test whether the refusal would impair the very essence of the right leads to a conclusion that the grant of legal aid will only rarely be appropriate. The very essence is that in procedural terms it can be put forward in an effective manner and there is a fair process."
The state of affairs on the ground
"It is true that the number of applications has been much lower than expected and it is also true that very few have been granted, but we are satisfied that the system is working in accordance with the section."
"PLP's consistent experience of the application process was that it was time-consuming, legally and evidentially involved, and that applications were almost inevitably bound to fail. The observations we drew from our work were that various systemic barriers meant that it was close to impossible for an applicant to satisfy the LAA that they qualified for funding … in those cases in which we were involved or have been given case details, the trend appears to be that funding has only been granted once litigation has been threatened".
The facts: Q v Q
"Assuming that public funding in the form of legal aid is not going to be available to the father, because his public funding has been withdrawn and an appeal against that withdrawal has been dismissed, and on the footing that, although the father has recently gained employment, his income is not such as to enable him to fund the litigation, there is a pressing need to explore whether there is any other way in which the two problems I have identified can be overcome, the first problem being the funding of the attendance of the experts, the second being the funding of the father's representation."
I went on (para 18):
"There may be a need in this kind of situation to explore whether there is some other pocket to which the court can have resort to avoid the problem, if it is necessary in the particular case – I emphasise the word "necessary" – in order to ensure a just and fair hearing. In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay. In a case such as the present where one party is publicly funded, because the mother has public funding, but the father does not, it is, I suppose, arguable that, if this is the only way of achieving a just trial, the costs of the proceedings should be thrown on the party which is in receipt of public funds. It is arguable that, failing all else, and bearing in mind that the court is itself a public authority subject to the duty to act in a Convention compliant way, if there is no other way of achieving a just and fair hearing, then the court must itself assume the financial burden, as for example the court does in certain circumstances in funding the cost of interpreters."
"May I be very clear? I am merely identifying possible arguments. None of these arguments may in the event withstand scrutiny. Each may dissolve as a mirage. But it seems to me that these are matters which required to be investigated in justice not merely to the father but I emphasise equally importantly to the son, as well as in the wider public interest of other litigants in a similar situation to that of the father here. I emphasise the interests of the son because, under our procedure in private law case like this where the child is not independently represented, fairness to the child can only be achieved if there is fairness to those who are litigating. There is the risk that, if one has a process which is not fair to one of the parents, that unfairness may in the final analysis rebound to the disadvantage of the child"
"intervene in the proceedings to make such submissions as are appropriate in relation, in particular, to the argument that in a situation such as this the expenditure which is not available from the Legal Aid Agency but which, in the view of the court, if it be the view of the court, is necessary to be incurred to ensure proceedings which are just and fair, can be met either from the Legal Aid Agency by route of the other certificate, the mother's certificate, or directly at the expense of the court."
"I am very grateful for the opportunity to intervene but the Ministry of Justice does not propose to do so in this case.
Ministers have no right or power to intervene in individual legal aid funding decisions made by the Director of Legal Aid Casework. The independence of the Director is an important statutory measure, which ensures impartiality in decision making. From the information recorded in your judgment, it is clear that the father in this case failed to satisfy the statutory merits criteria required to access funding. The merits test is a fundamental and long established part of the legal aid system, and ensures that limited public money is focussed on sufficiently meritorious cases and is not available in cases lacking sufficient merit. It is clearly established that it is legitimate for the Government to focus limited public resources through applying a merits test.
As you record in your judgment, there is expert evidence in the case (one report plus addenda commissioned by the father and one plus addendum commissioned jointly by the mother and the father) which set out unequivocally that the son would not be safe in his father's presence and that at the moment there should be no contact between the father and the son. There have always been litigants in person in family proceedings, whether because individuals do not qualify for legal aid or choose to represent themselves, and the Courts have been able to resolve such proceedings justly and fairly.
I agree with you that further delay should be avoided in this case and, in the absence of a mechanism for funding the appearance of the experts or representation for the father, you will have to decide this issue in the absence of the cross examination you refer to in your judgment."
The facts: Re B
"No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either –
(a) in connection with that offence, or
(b) in connection with any other offence (of whatever nature) with which that person is charged in the proceedings."
Section 38(3) provides that in certain circumstances "the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused." Section 38(4) provides that:
"If the court decides that it is necessary in the interests of justice for the witness to be so cross-examined, the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused."
"In this case, the child the subject of the proceedings (R) had a guardian appointed pursuant to the provisions of r 9.5 of the Family Proceedings Rules 1991, as amended. However, that guardian, for entirely understandable forensic reasons, regarded it as wholly inappropriate that the burden of cross-examining R's half-sister, B, with whom she lives, should fall to the child's advocate. For reasons particular to the facts of that case which I need not describe further, I agreed. It may be that in some cases such a guardian would feel able to conduct the cross-examination, although that cannot be a guaranteed outcome in any case."
"The trial judge's duty is to ensure to the utmost of his ability that the defendant, even if unrepresented, or perhaps particularly if unrepresented, has a fair trial. Every defendant is not guilty until proved to be so. Where, for example, a defendant is accused of rape, the trial cannot be conducted on the assumption that he is a rapist and the complainant a victim, since the whole purpose of the proceeding is to establish whether that is so or not. In the context of section 34A [of the Criminal Justice Act 1988], guidance was given by this Court in De Oliveira  Crim LR 600 where Rose LJ said:
"When the situation arises in which an unrepresented defendant is statutorily prohibited from cross-examining, it will generally be desirable that the trial judge should ask such questions as he sees fit, to test the accuracy and reliability and the possibility of collusion between the prosecution witnesses."
Without either descending into the arena on behalf of the defence or, generally speaking, putting any sort of positive case on behalf of the defence, this is a difficult tight-rope for the trial judge to walk. However, he must do his best according to the circumstances of the particular case.
It is also open to the judge in an appropriate case to ask a defendant whether there are matters which he wishes to have put to a witness. However, it would be for the judge to decide whether and how to put questions in relation to those matters. In the present case, the judge, in the course of submissions before the trial, correctly characterised himself as a transmission channel rather than a defence advocate so far as the questioning of witnesses was concerned.
If a judge follows these necessarily general precepts, this Court will be very slow to interfere. It should of course also be borne in mind that there is a heavy duty on prosecuting counsel, which particularly arises where a defendant is unrepresented, to be scrupulously careful in the way in which the case is presented, so that no unfair prejudice against the defendant can arise from the manner in which the trial is conducted."
"24 … For my part, I feel a profound unease at the thought of conducting such an exercise in the family jurisdiction, whilst not regarding it as impossible. If it falls to a judge to conduct the exercise it should do so only in exceptional circumstances.
The desirable solution
25 I would invite urgent attention as to creating a new statutory provision which provides for representation in such circumstances, analogous to the existing statutory framework governing criminal proceedings as set out in the 1999 Act. Such a statutory provision should also provide that the costs of making available to the court an advocate should fall on public funds. I can see no distinction in policy terms between the criminal and the civil process. Logic strongly suggests that such a service should be made available to the family jurisdiction. If it is inappropriate for a litigant in person to cross-examine such a witness in the criminal jurisdiction, why not in the family jurisdiction?"
"Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to –
(a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and
(b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper."
It can be seen that this falls far short of what would be required in a criminal trial and far short of what Roderic Wood J had called for.
"If ever there was exceptional private law litigation then this must be it. I say that for these reasons:
(i) The seriousness of the allegations involved.
(ii) The fact that if these issues were before a criminal court the Father would be prohibited by statute from cross examining the Mother in person. That is as a result of s34 of the Youth Justice and Criminal Evidence Act 1999.
(iii) The allegation of rape is one of a number of serious allegations that are made. Any analysis of that allegation would have to be placed in context. I find it very difficult indeed to envisage how a judge asking questions on behalf of Father would be able to do so in a way that he felt was sufficient.
(iv) Fourthly and notwithstanding the provisions of Schedule 10 of the Crime and Courts Act 2013 (which I have considered, although they are not yet in force) taking into account the point that I have made in iii) above and the fact that the judge could not take instructions, I have difficulty in seeing how that statutory provision in Schedule 10 would be perceived as sufficiently meeting the justice of the case.
(v) Where allegations of this seriousness arise it is very important that the respondent to the allegation is given advice. That advice cannot be given to him by the judge and could not be given to him by the representative of the guardian.
(vi) The issue that arises is of very real importance to the two adults but also to this child. If the Mother's allegations are substantiated there is a very real prospect that they may prove to be definitive of the relationship between this child and her Father.
(vii) In fact finding cases of complexity a judge is expected to give himself full and correct legal directions. It is vital that those legal directions are correct and take account of the positions of both of the parties immediately involved.
(viii) Although enquiry might be made of the Bar Pro Bono Unit or indeed of the Attorney General to see whether arrangements might be made for D to have free representation or the Attorney General to act as amicus curiae neither of those solutions presents itself as likely to be available and neither is anywhere near as satisfactory as D having his own representation. I regard it as highly unlikely that either avenue of enquiry would produce representation in any event. In March this issue was being investigated further.
(ix) As to the position of the Guardian's representative everything that I have said about the position of the judge applies in at least equal measure to the guardian's solicitor if not more so. The guardian's statutory role is to promote the welfare of the child. It is no part of the roles of the Guardian or of the children's solicitor to adopt the case of one party in cross examination or argument. After the fact finding case is resolved it is essential that both parties retain confidence in the guardian and in the institution of CAFCASS. I therefore cannot see that the Guardian or the child's solicitor could be expected to conduct cross examination on behalf of this Father."
The facts: Re C
"Dealing with a case justly includes, so far as is practicable –
(a) ensuring that it is dealt with expeditiously and fairly;
(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(c) ensuring that the parties are on an equal footing;
(d) saving expense; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."
"Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice."
I do not take up time considering whether this is applicable in cases such as those before me. In any event, it is not clear that it creates any greater right than arises under Articles 6 and 8 of the Convention: see Gudanaviciene and others v Director of Legal Aid Casework and another  EWHC 1840 (Admin), paras 36-37.
"Ruling on legal aid in the form of assistance by a lawyer, the ECtHR has held that the question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant's capacity to represent himself effectively."
"Interpreters in Civil and Family Proceedings
Deaf and Hearing impaired Litigants
Her Majesty's Courts & Tribunals Service will meet the reasonable costs of interpreters for deaf and hearing-impaired litigants for hearings in civil and family proceedings. If an interpreter is needed, the court will make arrangements for an interpreter to attend.
Foreign language interpreters
Court staff will also arrange for language interpreters needed for civil and family hearings in certain circumstances where cases involve:
Domestic Violence and cases involving Children
Because of the sensitivity of these cases, we will provide an interpreter if required. This is irrespective of whether solicitors are involved or public funding is available.
For foreign language interpreters in any court proceedings we arrange and pay for interpreters in accordance with a standard set of terms and conditions."
Those terms and conditions are available on the same website.
Attendance of experts at court
Representation in court
"3 A court may properly seek the assistance of an advocate to the court when there is a danger of an important and difficult point of law being decided without the court hearing relevant argument. In those circumstances the Attorney-General may decide to appoint an advocate to the court.
4 It is important to bear in mind that an advocate to the court represents no one. His or her function is to give to the court such assistance as he or she is able on the relevant law and its application to the facts of the case. An advocate to the court will not normally be instructed to lead evidence, cross-examine witnesses, or investigate the facts. In particular, it is not appropriate for the court to seek assistance from an advocate to the court simply because a defendant in criminal proceedings refuses representation."
Nor is this a situation for the appointment of a special advocate: compare Re T (Wardship: Impact of Police Intelligence)  EWHC 2440 (Fam),  1 FLR 1048, and BCC v FZ, AZ, HZ and TVP  EWHC 1154 (Fam),  1 FLR 974.
"This Court's past recognition of the right of self-representation, the federal-court authority holding the right to be of constitutional dimension, and the state constitutions pointing to the right's fundamental nature form a consensus not easily ignored … We confront here a nearly universal conviction, on the part of our people as well as our courts, that forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so.
This consensus is soundly premised. The right of self-representation finds support in the structure of the Sixth Amendment, as well as in the English and colonial jurisprudence from which the Amendment emerged.
… In the long history of British criminal jurisprudence, there was only one tribunal that ever adopted a practice of forcing counsel upon an unwilling defendant in a criminal proceeding. The tribunal was the Star Chamber."
"In many legal systems parties are obliged to be represented by professional lawyers. That is not the British tradition, which has permitted individuals to represent themselves in both civil and criminal proceedings."
Discussion: Q v Q
Discussion: Re C