England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT NEWCASTLE UPON TYNE
IN THE MATTER OF THE CHILDREN ACT 1989

		14 November 2014

Her Honour Judge Hudson:

1. This case was listed before me for a contested finding of fact hearing on 29 October 2014. I vacated the hearing in circumstances which I will set out further in the course of this judgment. I am providing this short written judgment for the purposes of its disclosure to the Legal Aid Agency (LAA) so that the court's views are clearly known when considering the application made for exceptional Legal Aid funding on behalf of the respondent father. It is also appropriate, in my judgment, for this judgment to be published on BAILII, such is my concern about the issue of representation of the parties in this case.

Essential Background

2. This can be set put briefly for the purposes of this judgment. The mother and the father married in 2001 and separated in 2014. They have five children, aged between twelve and three years of age.
3. Following the separation, the mother applied on 3 March 2014 for a non-molestation order in respect of her and the children and a prohibited steps order to prevent the removal of the children from her care. Orders were made that day without notice to the father: non-molestation orders against the father in respect of the mother and the children; an interim residence order to the mother, prohibited steps orders preventing the father removing the children from the mother's care or from school and providing the father with supervised contact. Those orders were made without any determination of the factual issues between the parties. The father opposes the continuation of the non-molestation orders and seeks contact with the children. No contact has taken place since the proceedings commenced.
4. The evidence filed in the proceedings sets out the factual issues between the parties. The mother makes wide-ranging and serious allegations against the father. Little is agreed between them. On 11 June 2014 the district judge gave directions for a finding of fact hearing in respect of allegations made by the mother concerning the father's conduct. The order provided for a Scott schedule and supporting statements to be filed. At this stage of the proceedings, both parties were legally represented.
5. The schedule of allegations includes the following:

(a) Repeated rape by the father of the mother;

(b) Repeated assaults by the father on the mother resulting on occasions in physical injury, including assaults in the presence of the children;

(c) Assaults by the father on the children;

(d) Assaults by the father on the children's maternal grandmother;

(e) Repeatedly locking the mother and children in the home;

(f) Wide-ranging emotional abuse of the mother and the children, including controlling and threatening behaviour;

(g) Financial abuse.

6. These allegations are to be seen within the context of the particular religious, racial and cultural aspects of the case, which add complexity to an already extremely difficult case. In circumstances in which this judgment is to be published on BAILII I do not intend to set these issues out in any further detail, to avoid providing identifying information. These issues are however abundantly clear from even a brief consideration of the evidence filed in the case.
7. The father denies the allegations against him. He, in turn, makes allegations about the mother's behaviour towards him. The case papers are substantial, amounting to a lever arch file of very detailed documentation, including lengthy witness statements from the parties and statements from witnesses in support, police disclosure and a number of transcripts which are material to the allegations in the case. In addition to the parties themselves, oral evidence is required from three witnesses called in support of the mother's case.
8. On 6 August 2014, further directions were given by the district judge listing the case for a three day fact finding hearing before a circuit judge. His order anticipated that the father may be unrepresented by the time of the finding of fact hearing and referred the parties to the decision of the President in Q v Q; Re B (A Child); Re C (A (Child) [2014] EWFC 31, in which judgment was handed down the very same day.
9. The case was duly listed before me for hearing on 29 October 2014. On 17 October 2014 I was informed by the solicitor instructed for the father that he had applied pursuant to s.10(2)(a) Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) for exceptional funding for representation at the hearing, but that a decision was awaited and unlikely to be available in time for the hearing. On 27 October 2014 I vacated the hearing listed on 29 October 2014, in circumstances in which representation for the father could not then be put in place even if Legal Aid was granted. I informed the parties that I intended to provide a judgment in relation to the funding issue.

S.10 LASPO

10. The effect of LASPO is that, in general, public funding is not available for private law children cases. One of the two exceptions is contained in s.10 of LASPO:

(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.

11. Guidance issued by the Lord Chancellor indicates in paragraph 6 that s.10(3)(b) is to be used "in rare cases" where the risk of the breach of material rights "is such that it is appropriate to fund". Paragraph 7 provides that s.10(3)(b) should be used "in 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 s.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". Paragraph 10 provides that caseworkers will have to consider whether funding is necessary to avoid a breach of Article 6 rights, recording that "… the threshold for such a breach is very high … will withholding of legal aid make assertion of the claim practically impossible or lead to obvious unfairness in the proceedings?"

Recent Case Law

12. This issue of funding and the implications for the Article 6 and Article 8 rights of unrepresented parties in family proceedings have been considered in a number of recent reported cases. In addition to Q v Q; Re B (A Child); Re C (A (Child) (where it was considered in the context of three separate private law cases), the President also gave judgment in Re D [2014] EWFC 39 on 31 October 2014, a case in which concerned a placement application. Her Honour Judge Hallam was also concerned with the same issue in Re H, in which she gave judgment on 14 August 2014.
13. In Q v Q; Re B (A Child); Re C (A (Child) the President stated that it might be appropriate for the court to direct that the cost of representation and advice to parents in family proceedings should be borne by HMCTS where public funding was otherwise not available to a party. In Q v Q; Re B (A Child); Re C (A (Child), the president considered three separate situations in which the issue of funding arose.
14. The facts of Re B (A Child) are set out in paragraphs 26 to 37 of the judgment. His Honour Judge Wildblood QC gave judgment in that case on 27 January 2014 (reported as Re B (A Child) (Private law fact finding – represented father), D v K [2014] EWHC 700 (Fam). He considered the effect of s.31G(6) of the Matrimonial and Family Proceedings Act 1984, which came into force on 22 April 2014 but which was anticipated at the time of Judge Wildblood's judgment. At paragraph 6 Judge Wildblood said as follows:

"If ever there was exceptional private law litigation then this must be it. I say that for the following 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 s.34 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."

15. Judge Wildblood's judgment was referred to the LAA who nonetheless rejected the application. A judicial review pre-action protocol letter was then sent to the LAA on behalf of the father. The LAA agreed to re-take the relevant decisions and did so, but again refused funding. The father then lodged an application for judicial review. The LAA re-considered the application for funding in the light of Gudanaviciene and others v Director of Legal Aid Casework and another [2014] EWHC 1840 (Admin), then very recently decided. It was duly confirmed that the father's application had been granted with effect from the date of his original application. The father in Re B therefore had funding by the time of the hearing before the President.
16. This contrasted with the position of the father in Re C who remained without funding at the time of the hearing before the President. In addition to allegations made against him in the family proceedings, the father in Re C was also facing criminal proceedings.
17. The President identified at least three major problems, the most obvious of which he considered to be the denial of professional advocacy in the court room. The President addressed the general principles in paragraphs 45 to 49. As general principles, they are equally applicable to the present case. The judgment addressed the particular considerations in relation to legal advice and representation in court at paragraphs 58 to 64 and 65 to 79 respectively. Once again, those matters are equally applicable to the situation in the case I am concerned with.
18. In Re C, the outcome of the father's application for exceptional funding was awaited at the tine of the President's judgment. The President nonetheless set out the following two conclusions in paragraphs 85 and 86:

"85. The first is that the matters to which I have referred above (in particular those relating to the issues of privilege and related issues) are matters on which the father in Re B, and even more so the father in Re C, desperately needs access to skilled legal advice, both before and during the fact-finding hearing. These are not matters which the judge conducting the fact-finding hearing can determine without the benefit of legal argument on both sides. If the judge is deprived of adversarial argument, and if the father is denied access to legal advice both before and during the hearing, there must, in my judgment, be a very real risk of the father's rights under Articles 6 and 8 being breached both in the family proceedings and possibly also, in the case of the father in Re C, in the criminal proceedings. I bear in mind, of course, that, as I explained in Re X Children [2007] EWHC 1719 (Fam) [2008] 1 FLR 589, para 51, the admissibility in the criminal proceedings of any admission made in the family proceedings is in the final analysis a matter for the criminal, and not the family, judge. But this does not, in my judgment, meet the difficulty.

86. Linked to this there is, in the case of the father in Re C, a relating point made by Ms Bazley. The proper – the fair and just – management of the case requires, in my judgment, that I give directions inter alia requiring the father to respond to the mother's allegations and to file all evidence upon which he intends to rely. Ms Bazley submits with some force, and I am inclined to agree, that to require the father to comply with that part of the order without access to proper legal advice is to imperil his rights under Articles 6 and 8."

Implications for the Present Case

19. In Re B, as in this case, the mother alleged rape against the father, which he denied, as a result of which a finding of fact hearing was listed. In that case, as in this, the mother had legal aid but the father did not. The circumstances of the two cases are striking similar in these crucial respects. Without knowing the detail of the circumstances of the parties in Re B I am, of course, fully aware of the circumstances of the case I am concerned with. I have already referred to aspects of this case which, in my judgment, further complicate the issues and strengthen the argument that the case cannot fairly and justly proceed if the father does not have the benefit of Legal Aid to fund representation. Where the circumstances in Re B brought the father's application within s.10 of LASPO so as to grant him funding in the proceedings, an equally strong case may well be considered to exist in the present case.
20. If the father's application for funding is successful, I will be able to give further directions and the hearing can be listed. If funding is not granted, I will have to consider the appropriate course of action, including referring the case either to Mr Justice Moylan (as the Family Division Liaison Judge for the North Eastern Circuit) or, indeed, to the President. In either event, it is important that I am notified of the outcome of the determination of the father's application as soon as realistically practicable.

Her Honour Judge Hudson