England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		07th December 2006

Mr. Justice Roderic Wood:

The Issue:

1. In the context of a father's applications for a parental responsibility order and a contact order (pursuant to the provisions of Section 4 and Section 8 of the Children Act 1989, hereinafter called "The 1989 Act") in respect of his 9 year-old daughter "R" by a non-marital relationship, it was determined that there should be a fact-finding hearing to determine the truthfulness or falsity of a number of allegations, including allegations that he had on one occasion sexually abused the older daughter (by a different father) of the mother of his child. That sexual abuse was alleged to have taken place when the older daughter (hereinafter referred to as "B") was 9½; she is now 20 years of age. There were, in addition, other allegations relating both to the father's alleged behaviour towards B, and in respect of his behaviour generally, and in particular in relation to the excessive consumption of alcohol and the consumption of class A drugs, in respect of which B could give evidence.
2. In the course of the long forensic history of this case there came a time in March 2006 where the father, no longer able to fund the continuing litigation, but in receipt of earnings which disqualified him from receiving public funding from the Legal Services Commission, began to act in person.
3. All I need add by way of background for the purposes of this Judgment is that B was a borderline anorectic, and a suicide risk. Thus the question of by whom she should be cross-examined was of particular import, although I do not believe that the resolution of the issue of who should cross-examine such a witness in other cases is dependent on the existence of such features of vulnerability (both physical and psychological).

General Principles:

4. The burden of proving the allegations fell upon the mother, since forensically it was she who made them, although the factual evidence had to come from B. The standard of proof required was the balance of probabilities, [see Re: H (Minors) (Sexual Abuse: Standard of Proof) AC 563.]
5. Article 6 of the European Convention on Human Rights and Fundamental Freedoms 1950 as incorporated into English Law by Schedule 1 of the Human Rights Act 1998 reads (in part)

"Article 6 (1) In the determination of his Civil rights and obligations, or of any Criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

(3) Everyone charged with a criminal offence has the following minimum rights:

(c) To defend himself in person or to legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) To examine or have examined witnesses against him ….." (emphasis supplied).

6. In most, if not all, criminal prosecutions where a child is the alleged victim of abuse various procedures are adopted for the eliciting of such material. These procedures include the playing, where available and appropriate, of video- taped interviews of the child taken under the Achieving Best Evidence protocols. The child is then cross-examined (usually on a video-link) and, if necessary, re-examined. Although, in principle, Article 6 (3) (d) permits a defendant the right to cross-examine in person such a complainant, that particular right was circumscribed by section 34 A of the Criminal Justice Act 1988 which forbids a defendant in a criminal trial from cross-examining a child witness personally. A further inhibition on such a practice was put in place by section 35 of the Youth Justice and Criminal Evidence Act 1999 (hereinafter referred to as "the 1999 Act").
7. In civil cases, such as this, there is no automatic right given to a person facing such allegations to have a child witness appear in court for the purposes of giving evidence in chief and/or cross-examination. In Re D (sexual abuse) [2002] 1FLR 723 Dame Elizabeth Butler-Sloss P. sitting as a Divisional Court hearing an appeal from the justices in the context of care proceedings brought pursuant to the provisions of Part IV of the 1989 Act, said this:

"There are cases, particularly with children where a good video interview or a good audio interview will be accepted by the court in lieu of the child giving evidence because it is not the practice to ask children to give evidence in these care proceedings."

8. What, however, is the position in civil proceedings in relation to adults? The quotation from Re D above continues:

"It is not the practice to protect adults. Some adults may need protection and therefore, exceptionally, there may be an adult who does not give evidence but whose statement may be acceptable to the court. That will be a rare occurrence. Normally the court will expect adults to give evidence and at least to give a statement."

9. The same position applies, subject to a very limited category of exceptions which I need not recite, in respect of adult evidence in criminal proceedings in either the justices or the crown court. There is an expectation that an adult witness will give evidence and be cross-examined. Following the widely publicised case of R v Milton Brown (the first instance trial taking place before His Honour Judge Pontius, and the appeal hearing taking place before Lord Bingham of Cornhill LCJ, and Turner and Penrey-Davy JJ. [Milton Brown RV [1998] EWCA Crim. 1486]) Parliament addressed, as a matter of urgency practice and procedure in the criminal courts where a defendant in person has to cross-examine, or may choose to cross-examine, an adult complainant in certain categories of case involving allegations of a sexual offence – see below.
10. There followed swiftly from the decision of R v Milton Brown the passing of the 1999 Act. By section 34 of that Act:

"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."

As Lord Bingham LCJ. said in Milton Brown:

"When the defendants represent themselves in criminal trials problems regularly arise. Such defendants lack the knowledge of procedure, evidence and substantive law; that appreciation of relevance; that ability to examine witnesses and present facts in an orderly and disciplined way; and that detachment which should form part of the equipment of the professional lawyer. These deficiencies exist even where a defendant attempts to represent himself in all good faith. But the problems are magnified one hundred-fold where the defendant is motivated by a desire to obstruct the proceedings or to humiliate, intimidate or abuse any one taking part in it."

11. In considering this statutory provision I hereafter only refer to the position in relation to adult witnesses. Given that Article 6 of the Convention (see above) (and domestic law prior to its incorporation) nevertheless requires that a defendant in the criminal process shall have the right to have cross-examined any witness (even where they do not do so themselves) Parliament provided in section 38 of the 1999 Act as follows:

"(1) This section applies where an accused is prevented from cross-examining a witness in person by virtue of section 34, 35 or 36.

(2) Where it appears to the court that this section applies it must –

(a) invite the accused to arrange for a legal representative to act for him for the purpose of cross-examining the witness; and

(b) require the accused to notify the court, by the end of such period as it may specify, whether a legal representative is to act for him for that purpose.

(3) If by the end of the period mentioned in sub-section (2) (b) either –

(a) the accused has notified the court that no legal representative is to act for him for the purpose of cross-examining the witness, or

(b) no notification has been received by the court and it appears to the court that no legal representative is to so act,

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.

(4) 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."

12. These provisions apply to a "sexual offence" as defined by section 62 of the 1999 Act, and include indecent assaults (see section 62 (1) (b)). Thus the allegations in the case I am considering would qualify, if the trial were in the criminal jurisdiction, for consideration under, and application of, these provisions. The court may go on, in such proceedings, to appoint an advocate to conduct the cross-examination. Necessary amendments to the statutory and regulatory framework governing the cost of such representation are contained in section 40 of the 1999 Act, and the cost of such an advocate falls on the public purse either absolutely or subject to means.

Civil Jurisdiction:

The Options:

13. Assuming that the Family court takes the view that an adult witness should not be cross-examined by a litigant in person when making allegations of the kind covered by the provisions of section 62 of the 1999 Act (or indeed other allegations of the kind referred to in paragraph 1 above), how can the necessary enquiry proceed? Subject to the current practices of the Family court in protecting vulnerable witnesses, the right to have evidence tested and to cross-examine complainants set out in Article 6 (3) (d) of the Convention, although not strictly required by the terms of that provision, is an intrinsic part of the family court trial process.
14. The problem arises most acutely, but not exclusively, in private law proceedings. There is an increasing body of litigants in person, either from choice, or for lack of means (and in the absence of public funding). Thus, it seems to me, that the case I was trying is not likely to be unique, although it will be a comparative rarity.

The 9.5 Guardian:

15. In this case the child the subject of the proceedings (R) had a Guardian appointed pursuant to the provisions of Rule 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.

CAFCASS Legal:

16. In the instant case, as early as May 2006 Mr. Justice Ryder invited the parties to approach CAFCASS Legal to provide an advocate to conduct a cross-examination. They declined. It was their primary position that the advocate for the child R should conduct the cross-examination. I have already made it clear that on the facts of this case I disagree with that approach. However, CAFCASS Legal cannot be expected to provide advocates in such circumstances as a matter of regularity, if at all. Their remit is defined by statute, and does not encompass the provision of this particular service. See section 12 of the Criminal Justice and Court Services Act 2000 which defines the responsibilities of CAFCASS, and the "CAFCASS Practice Note" [2001] 2 FLR 151.

The Official Solicitor:

17. The Official Solicitor was also approached. He declined to provide an advocate. It is not difficult to discern why. The practice note issued under the Official Solicitor's name on 2nd July 2001 is entitled "Official Solicitor: Appointment in Family Proceedings [2001] 2 FLR 155". It summarises "the continuing rolé of the Official Solicitor in Family proceedings". I need not set out its terms in full. Under the sub-heading "Non-Subject Children" in paragraph 5 of that document, there is a limited provision in the following circumstances:

"Again in the absence of any other willing and suitable person, the Official Solicitor will act as Next Friend or Guardian ad Litem of a child party whose own welfare is not the subject of family proceedings (Family Proceedings Rules 1991, Rule 2.57, Rule 9.2 and Rule 9.5). The most common examples will be:

(c) A child witness to some disputed factual issue in a children case and who may require intervener status. In such circumstances the need for party status legal representation should be weighed in the light of Re H (Care Proceedings; Intervener) [2000] 1 FLR 775".

It is clear from the facts of the case I am considering (and ones where this issue arises) that neither of these provisions is relevant.

18. The Official Solicitor understandably took the view that the circumstances of the case did not qualify for his intervention. With regret, I respectfully agree with his decision.

The Free Representation Unit:

19. The Free Representation Unit of the Bar was approached to see if they could provide an advocate. For a variety of reasons I need not elaborate, they did not feel able to do so. However, I would venture to suggest that it was entirely understandable that they should have been approached, and whilst commenting that the FRU provide an extremely valuable service to litigants, mostly in the field of tribunal work, the age and experience of most of the members of the Bar who generously volunteer their services to the FRU is not necessarily commensurate with the need for an experienced cross-examiner where such delicate issues as those I have described arise.

The Attorney-General:

20. The Attorney-General does provide advocates to the court. But he does so only in a limited category of case, and the necessary function in this case described above does not fall within those categories. See particularly "Attorney-General's Memorandum: 19th December 2001, [2002] Fam. Law 229.
21. Paragraphs 3 & 4 of that memorandum read as follows:

"(3) A court may properly seek the assistance of an advocate 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 of 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."

As can be seen from paragraph 4, there is an explicit inhibition on the provision of an advocate ("normally") to cross-examine witnesses.

22. In the case I have been deciding, as a result of an urgent request by me to the Attorney-General in the course of a pre-hearing review taking place two days before the three day fact-finding hearing, he, exceptionally, agreed to provide an advocate. I am extremely grateful to the Attorney-General, to the Treasury Solicitor who instructed counsel, and to Mr. Cellan-Jones who attended to conduct the cross-examination for a part of one day of the hearing. If I may say so, Mr. Cellan-Jones conducted the exercise with great skill and tact. I was immeasurably assisted by the help I received. But I would emphasise that the Attorney-General is not a regular "port of call" for the provision of such assistance, even where, as here, all other available options had been considered and either not been available or not been appropriate.

The Judge:

23. I have not of course overlooked the possibility that the judge may assist in such cases by taking over the questioning. Reverting to the criminal trial process there is comment in R v Milton Brown within the Judgment of Lord Bingham LCJ. on the judge's duties, and the carrying out of such a role by the judge. He said this:

"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 guidance was given by this court in R v DeOliveira (15 November 1996) 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. 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 do so only in exceptional circumstances.

The Desirable Solution:

25. I would invite urgent attention 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?

This is my Judgment