B e f o r e :
sitting as a Deputy High Court Judge
(judgment handed down on 5th January 2015)
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Re K and H (Children: unrepresented father: cross-examination of child) |
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Miss Philippa Whipple QC (instructed by the Treasury Solicitor) on behalf of the Lord Chancellor
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HTML VERSION OF JUDGMENT
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JUDGE BELLAMY:
Background
Oral evidence from Y
'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?
'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...'
Legal Aid
'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)
Should the father pay for his own representation?
'I am now self represented in this matter as both the unwillingness of my counsel to challenge the so called evidence and information filed in this case and the high financial impact of these proceedings'. (sic)
The Bar Pro Bono Unit
A case management issue?
Children's Guardian
'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.'
Special measures
Section 31G(6) Matrimonial and Family Proceedings Act 1984
'33. Some of these problems have been addressed in section 31G(6) of the Matrimonial and Family Proceedings Act 1984, set out in Schedule 10 of the Crime and Courts Act 2013, which came into effect on 22 April 2014:
"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…'
'unable to examine or cross-examine a witness effectively'
'put…to the witness'
'While ensuring that the allegations are properly put and responded to, the fact-finding hearing can be an inquisitorial (or investigative) process, which at all times must protect the interests of all involved. At the fact-finding hearing –
- Each party can be asked to identify what questions they wish to ask of the other party, and to set out or confirm in sworn evidence their version of the disputed key facts.
- The judge or lay justices should be prepared where necessary and appropriate to conduct the questioning of the witnesses on behalf of the parties, focusing on the key issues in the case.
Victims of violence are likely to find direct cross-examination by their alleged abuser frightening and intimidating, and thus it may be particularly appropriate for the judge or lay justices to conduct the questioning on behalf of the other party in these circumstances, in order to ensure both parties are able to give their best evidence.'
'24. These observations on past practice in criminal trials have been significantly overtaken by the passing of the 1999 Act. There will or may be cases where such a practice is still the appropriate one, but they are more likely than not to be rare. 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 only do so in exceptional circumstances.'
'The second thing which is unclear is this: what, in contrast to the word "put" in section 31G(6), do the words "cause to be put" mean? When section 31G(6) provides that in certain circumstances "the court is to…put" questions, that must mean questioning by the judge or magistrate. In some – probably many – cases that will be entirely unproblematic. But in cases where the issues are…grave and forensically challenging…questioning by the judge may not be appropriate or, indeed, sufficient to ensure compliance with Articles 6 and 8. There is, in my judgment, very considerable force in what Roderic Wood J…said in [his] judgment [in H v L and R at para 24.]'
'cause to be put, to the witness'
The issue
'45. The starting point is simple and clear. FPR 1.1(1) sets out the "overriding objective" that the court is to "deal with cases justly, having regard to any welfare issues involved." Rule 1.1(2) provides that:
"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."
46. The court is a public authority for the purposes of the Human Rights Act 1998 and is therefore required, subject only to section 6(2), to act in a way which is compatible with Articles 6 and 8 of the Convention. So far as is material for present purposes Article 6(1) provides that "In the determination of his civil rights and obligations…, everyone is entitled to a fair…hearing within a reasonable time". Article 8, which guarantees "the right to respect for…private and family life", also affords significant procedural safeguards in relation to the court process. As the Strasbourg court said in McMichael v UK (1995) 20 EHRR 205, para 87, "the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8."'
'76. The second thing which is unclear is this: what, in contrast to the word "put" in section 31G(6), do the words "cause to be put" mean? When section 31G(6) provides that in certain circumstances "the court is to … put" questions, that must mean questioning by the judge or magistrate. In some – probably many – cases that will be entirely unproblematic. But in cases where the issues are as grave and forensically challenging as in Re B and Re C, questioning by the judge may not be appropriate or, indeed, sufficient to ensure compliance with Articles 6 and 8...
77. The words "cause to be put" must, in contrast, contemplate questioning by someone other than the judge. Now that someone else might be an advocate whom the court has managed to persuade to act pro bono. It might be the guardian, if there is one, or the guardian's advocate. But there are…great difficulties in expecting the guardian or the guardian's advocate to undertake this role...
78. What then is the court to do if the father is unable to pay for his own representation and "exceptional" legal aid is not available?
79. In the ultimate analysis, if the criteria in section 31G(6) are satisfied, and if the judge is satisfied that the essential requirements of a fair trial as required by FPR 1.1 and Articles 6 and 8 cannot otherwise be met, the effect of the words "cause to be put" in section 31G(6) is, in my judgment, to enable the judge to direct that appropriate representation is to be provided by – at the expense of – the court, that is, at the expense of HMCTS.'
'90. I have concluded that there may be circumstances in which the court can properly direct that the cost of certain activities should be borne by HMCTS. I emphasise that (the provision of interpreters and translators apart) this is an order of last resort. No order of this sort should be made except by or having first consulted a High Court Judge or a Designated Family Judge.'
The Lord Chancellor's response
'(3) …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)…'
'I am afraid that I have come to the conclusion, as I did in the Allerdale case, that where Parliament has made detailed provisions as to how certain statutory functions are to be carried out there is no scope for implying the existence of additional powers which lie wholly outside the statutory code.'
'A power conferred in very general terms plainly cannot be relied on to defeat the intention of clear and particular statutory provisions…The remedy for a defective statutory procedure is not, however, to ignore or circumvent it but to amend it.'
Discussion
'26. It is no part of the function of the Family Court or the Family Division to pass judgment on the appropriateness and wisdom of the arrangements that Parliament (or Ministers acting in accordance with powers conferred by Parliament) choose to make in relation to legal aid. The legality, rationality and, where relevant, the proportionality of the scheme, if properly the subject of judicial scrutiny, are primarily the responsibility of the Administrative Court. It is, however, the responsibility – indeed, the duty – of the judges in the Family Court and the Family Division to ensure that proceedings before them are conducted justly and in a manner compliant with the requirements of Articles 6 and 8 of the Convention. That, after all, is what Parliament determined when it enacted section 6 of the Human Rights Act 1998, declaring, subject only to section 6(2), that it is "unlawful" for a court to act in a way which is incompatible with Articles 6 and 8.'
'"representation" means representation for the purposes of proceedings and includes –
(a) The advice and assistance which is usually given by a representative in the steps preliminary or incidental to proceedings, and
(b) subject to any time limits which may be prescribed, advice and assistance as to any appeal…'
It is clear from that definition that 'representation' has several aspects. Representation is much wider than the mere provision of advocacy services in court. It also includes, for example, the preparation of cases for trial including the instruction of experts and the preparation of hearing bundles.
'51. Her Majesty's Courts & Tribunals Service (HMCTS) provides and pays for interpreters in court. The relevant HMCTS Guidance, Court interpreters (available on www.justice.gov.uk/courts/interpreter-guidance), is as follows:
"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.
…
All Courts
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.'
'2.3 Other cases where an interpreter might be provided
In addition to the above HMCTS will provide an interpreter if that is the only way that a litigant can take part in a hearing. The relevant circumstances are:
- When the individual/s cannot speak or understand the language of the court well enough to take part in the hearing; and
- Cannot get public funding; and
- Cannot afford to fund an interpreter privately and;
- Has no family member, or friend, who can attend to interpret for them and/or is acceptable to the court.
OR
- Where the Judge directs that an interpreter must be booked as the case cannot proceed without HMCTS funding one.
For all cases there is no legal obligation to provide interpreters to interested parties. Satisfy yourself of the situation and find out if the person has legal representation.'
'The implementation of the single Family Court does not in itself change the way files and bundles are used. But we need to make changes for two reasons:-
- the President of the Family Division has issued a revised Bundles Practice Direction (27A) which makes changes to some of the current arrangements. In particular, it will apply across all levels of judiciary and to public and private law;
- the courts are seeing an increase in the number of Litigants in Person (LiPs), where no bundle is produced by the parties. HMCTS has agreed with the judiciary that court staff will prepare a 'LiP File' in these circumstances, as directed by local judiciary.'
This is reflected in FPR 2010 PD12B (The Child Arrangements Programme) which provides that,
'Where both parties are Litigants in Person, the court may direct HMCTS to produce a Litigant in Person bundle'.
'if "live" cross examination is appropriate, the need for and use of a registered intermediary…or other communication specialist to facilitate the communication of others with the child or relay questions directly, if indicated by the needs of the child.'
The Family Court Practice 2014, notes that (p. 701),
'Intermediaries are a "special measure", but a relatively new one. The use of intermediaries in England and Wales came about as a result of the Youth Justice and Criminal Evidence Act 1999, s 29. They operate in the criminal courts and are recruited and regulated by the MoJ…There is currently no intermediary scheme for the Family Court and no obvious source of funding in place to provide a RI for family cases, even on an ad hoc basis.'
'79. So far as funding is concerned, there is a distinction between, on the one hand, the cost of obtaining a report from an expert as to capacity and competence and, on the other, the cost of providing services from an intermediary. The former will, subject to the approval of the legal aid agency, fall under the public funding certificate, whereas the latter, as a type of interpretation service, will, as far as I understand the rules, be borne by the Court Service. It is important that those representing the relevant party address these funding issues at the earliest opportunity. They should obtain prior approval from the legal aid agency for the instruction of the expert and, as soon as possible, give notice to Her Majesty's Courts and Tribunal Service that the services of an intermediary are likely to be required.'
'The Lord Chancellor must pay remuneration to a provider in relation to expert services incurred as a disbursement by the provider in accordance with—
(a) the relevant contract; and
(b) the provisions of Schedule 5.'
It is clear from Schedule 5 paragraph 3 that the table of experts set out in that Schedule is not exhaustive:
'Where the expert service is of a type not listed in the Table after paragraph 1, in considering the rate at which to fund the expert service the Lord Chancellor—
(a) must have regard to the rates set out in the Table after paragraph 1; and
(b) may require a number of quotes for provision of the service to be submitted to the Lord Chancellor.'
In Wiltshire County Council v N [2013] EWHC 3502 Baker J described an intermediary as 'a type of interpretation service'. I agree.
Conclusions
(a) It is the first duty of judges sitting in the Family Court to ensure that proceedings are conducted fairly (FPR 2010 rule 1.1). Failure to do so may lead to the court itself acting unlawfully (s.6(1) of the Human Rights Act 1998).(b) Where a party is unrepresented (whether because legal aid is not available or by choice) and is 'unable to examine or cross-examine a witness effectively' the court has a duty to assist that party (s.31G(6) of the Matrimonial and Family Proceedings Act 1984). This requires the court 'to put, or cause to be put' questions to a witness.
(c) The court will itself put questions to a witness if it is satisfied that it is 'necessary and appropriate' to do so. It will not normally be appropriate to do so when the case involves issues which are grave and/or forensically complex.
(d) Where the court is satisfied that it is not 'appropriate' for the judge to put questions to an alleged victim, the court must arrange for (cause) a legal representative to be appointed to put those questions.
(e) The court may direct that the costs of the legal representative be borne by HMCTS.
(f) The court may nominate the legal representative who is to be appointed to undertake that task.
(g) The extent of the work to be undertaken by a legal representative so appointed should be made clear at the outset and should be proportionate.
(h) In those limited cases where legal aid is still available in private law Children Act proceedings there is a detailed regulatory framework governing the calculation of costs payable to (claimable by) a solicitor for undertaking such work. The fees payable by the Legal Aid Agency are less than a solicitor might charge a privately paying client for doing the same work. That has always been so. I can see no cogent argument for suggesting that a legal representative appointed by the court should be entitled to a higher rate of remuneration than if that work were undertaken under the legal aid scheme.
Note 1 The report does not provide a ringing endorsement of the practice of judges adopting an inquisitorial style – see, in particular, Chapter 4 ‘In the Courtroom’: ‘The court system is based on an adversarial, full representation model with two lawyers presenting their client’s cases to an impartial arbiter – the judge – who will make a decision. The role of the lawyers is central. Hearings where both parties were represented were generally patterned, predictable and efficient. All participants understood their roles without any need for explanation or behaviour management. LIP hearings were far less standardised. There was considerable variation in who picked up the tasks that a lawyer would normally perform in their absence – whether it was a LIP, the judge, the lawyer for the represented party or nobody. There was also variation in how effectively those tasks were done…Ensuring equality of arms between parties was a real challenge, notably when a LIP was unaware of their legal entitlements and/or unable to do justice to their case. Judges varied considerably in the extent to which they helped LIPs, in itself a source of potential unfairness. Judicial attempts to support LIPs could be seen as unfair to represented parties in semi-representation cases. Two key ‘legal’ tasks - the preparation of bundles and cross-examination - were beyond the capacity of most LIPs unless they had considerable help.’ (pages 77-78). [Back]