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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> K and H (Children)  EWCA Civ 543 (22 May 2015)
Cite as:  1 WLR 3801,  5 Costs LO 607,  3 FCR 77,  EWCA Civ 543,  1 All ER 102,  WLR(D) 237,  WLR 3801,  Fam Law 778
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ON APPEAL FROM THE FAMILY COURT SITTING AT LEICESTER
HHJ BELLAMY SITTING AS A DEPUTY HIGH COURT JUDGE
 EWFC 1
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE BLACK
LORD JUSTICE MCFARLANE
| Re K and H (CHILDREN)
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Lorna Meyer QC and Kirsty Gallacher (instructed by LDJ Solicitors) for the First Respondent Mother
Deirdre Fottrell QC, Marlene Cayoun and Noel Arnold (instructed by Coram Children's Legal Centre) for the Interveners: the Association of Lawyers for Children and Coram Children's Legal Centre
Hearing dates : 29-30 April 2015
Crown Copyright ©
Master of the Rolls:
The relevant legislation
"ensure that there is an efficient and effective system to support the carrying on of the business of….the family court….and that appropriate services are provided for those courts."
"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."
"civil legal services required to be made available under section 9 or 10 or paragraph 3 of Schedule 3 (civil aid)…."
"(1) Civil legal services are to be available to an individual under this Part if-
(a) they are legal services described in Part 1 of the Schedule 1, and
(b) the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination)."
"(1) The Director must determine whether an individual qualified under this Part for civil legal services in accordance with-
(a) section 21 (financial resources) and regulations under that section, and
(b) criteria set out in regulations made under this paragraph."
"a court before which criminal proceedings take place or are to take place, is authorised to determine whether an individual qualifies under this Part for representation for the purposes of criminal proceedings of a prescribed description."
"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)
"….there are likely to be people in this country with disposable incomes of more than £733 per month who are genuinely unable to fund the cost of legal representation. For those who fall into that category, the application of the approach suggested by Miss Whipple [viz that if the father does not pay for representation then Y's evidence must go unchallenged] would appear likely to lead to a breach of an unrepresented litigant's article 6 rights."
"42. Y's allegations against the father are pivotal to determining welfare issues in respect of K and H and in particular the issue of the nature and extent of their future contact (if any) with their father. In determining that issue K and H's welfare must be the court's paramount consideration. In arriving at a decision about the children's welfare interests the court must consider the factors set out in the welfare checklist in s.1(3) of the Children Act 1989. In this case a finding that the father has sexually abused Y would be relevant in assessing both risk of harm (s.1(3)(e)) and the father's capacity to meet the children's needs (s.1(3)(f)). In such circumstances, can it seriously be contended that it would be 'appropriate' for the judge, who must determine the facts, to cross-examine the key witness upon the reliability of whose evidence the fact-finding exercise so heavily depends? In answering that question I bear in mind that that question engages not only the father's Art 6 and Art 8 rights but also those of K and H and arguably those of Y, too.
43. I noted earlier the President's observation in Q v Q; Re B; Re C that 'in some – probably many – cases' it will be entirely unproblematic for the judge to question witnesses. I respectfully agree. As can be seen from the report Litigants in person in private law family cases published by the Ministry of Justice in 2014, this already happens on a daily basis in the Family Court. No-one is suggesting that that practice should stop or that it is inherently incompatible with the protection of Art 6 or Art 8 rights. However, I am in no doubt that there are cases – of which I am satisfied that this is one – where cross-examination by the judge is incompatible with the Art 6 and Art 8 rights of the respective participants and is not, therefore, appropriate."
"However, I do not accept that the comprehensive nature of the legal aid scheme precludes the State from providing, or the courts from requiring the State to provide, aspects of 'representation' for those who are not able to benefit from the scheme set out in LASPO in circumstances where this is necessary, appropriate and proportionate to safeguard their Convention rights and to ensure compliance by the court with its own duty to act in a way which is compatible with Convention rights. The court's power to direct that the cost of certain activities should be borne by HMCTS is, as the President has said, 'an order of last resort'. However, that the power exists at all is in my judgment absolutely clear. "
The grounds of appeal
THE FIRST GROUND OF APPEAL: THE COURT HAD NO POWER TO MAKE THE DECISION.
"75. Third…, does section 31G(6) operate to confer on a judge of the Family Court power to forbid a party who wishes to conduct his own case from examining or cross-examining a witness? Again I have heard no sustained argument, but my inclination is to think that the answer is, no it does not, for principle suggests that such an important right is only to be cut down by express words or necessary implication, and neither is very obviously to be found in section 31G(6): see again General Mediterranean Holdings SA v Patel and Another  1 WLR 272. As against that, I can see the argument that there may be cases where to expose the alleged victim to cross-examination by the alleged perpetrator might engage the alleged victim's rights, whether under Article 8 or Article 3, in such a way as to impose on the court an obligation under the 1998 Act to prevent it, so that in such a case section 31G(6) has to be read as giving the court the appropriate power to do so.
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. There is, in my judgment, very considerable force in what Roderic Wood J and Judge Wildblood said in the passages in their judgments (respectively, para 24 and paras 6(iii)-(v)) which I have already quoted.
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, as both Roderic Wood J and Judge Wildblood understandably pointed out, great difficulties in expecting the guardian or the guardian's advocate to undertake this role – difficulties which were expounded also in the argument before me. I agree with what Judge Wildblood said (para 6(ix) quoted above). The point applies with equal force in the circumstances of both Re B and Re C.
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."
"It would appear, however, by reference to the Framework Document that the Chief Executive, under delegated authority, can on behalf of HMCTS commit resources or incur expenditure from money voted by Parliament without specific prior approval. If this understanding is correct then providing the order made by the Judge below does not require expenditure that strays outside the terms of the delegation, surely it is not necessary to point to a specific statutory provision authorising the precise payment he directed in order for this to be lawful."
"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."
"I will not multiply examples, but I hope I have said enough to explain why I cannot attribute to the legislature any general willingness to provide the kind of publicly funded safety net which the judiciary would like to see in respect of costs necessarily and properly incurred by a litigant and not otherwise recoverable. It is for this reason that I find it impossible to say that whenever the legislature gives a right of appeal, whether in civil or criminal proceedings, in circumstances where a successful appellant may be unable to recover his costs from any other party, that affords a sufficient ground to imply a term enabling the court to order the costs to be paid out of public funds. The strictly limited range of the legislation expressly authorising payment of costs out of central funds in criminal proceedings no more lends itself to extension by judicial implication than does the equally limited range of legislation authorising payment of costs out of the legal aid fund in civil proceedings. Some general legislative provision authorising public funding of otherwise irrecoverable costs, either in all proceedings or in all appellate proceedings, would no doubt be an admirable step in the right direction which the judiciary would heartily applaud. But this does not, in my opinion, justify the courts in attempting to achieve some similar result by the piecemeal implication of terms giving a power to order payment of costs out of central funds in particular statutes, which can only lead to anomalies."
"Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend Lord Rodger of Earlsferry, 'go with the grain of the legislation'. Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant, and the choice may involve issues calling for legislative deliberation."
"1.6 The Lord Chancellor and Lord Chief Justice will not intervene (whether directly or indirectly) in the day to day operations of the agency and have placed the responsibility for overseeing the leadership and direction of HM Courts and Tribunals Service in the hands of its Board. The Chief Executive is responsible for the day-to-day operations and administration of the agency.
7.8 Subject to standard government supply procedures and the financial delegation authority the Chief Executive has authority to approve all expenditure within the Departmental Expenditure Limit and the delegated authority which is consistent with the strategic and business plans for HM Courts and Tribunals Service."
"(3) The Lord Chancellor may by regulations make provision for payment out of central funds, in such circumstances and in relation to such criminal proceedings as may be specified, of such sums as appear to the court to be reasonably necessary—
(e) to cover the proper fee or costs of a legal representative appointed under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 (defence representation for purposes of cross-examination)….." (emphasis added).
"The cost of funding an intermediary in court properly falls on Her Majesty's Courts and Tribunals Service because, as the LAA has correctly pointed out, an intermediary is not a form of 'representation' but a mechanism to enable the litigant to communicate effectively with the court, and thus analogous to translation, so should therefore be funded by the court: see Re X, para 37 and C v Sevenoaks Youth Court  EWHC 3088 (Admin),  1 All ER 735, paras 26-27."
THE FOURTH GROUND OF APPEAL: BREACH OF THE CONVENTION?
"62. The right of access to a court is not, however, absolute and may be subject to restrictions, provided that these pursue a legitimate aim and are proportionate (see Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, pp. 24-25, § 57). It may therefore be acceptable to impose conditions on the grant of legal aid based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings (see Munro, cited above). Moreover, it is not incumbent on the State to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary (see De Haes and Gijsels, p. 238, § 53, and also McVicar, §§ 51 and 62, both cited above)."
"The general principles established by the ECtHR are now clear. Inevitably, they are derived from cases in which the question was whether there was a breach of article 6(1) in proceedings which had already taken place. We accept the following summary of the relevant case-law given by Mr Drabble: (i) the Convention guarantees rights that are practical and effective, not theoretical and illusory in relation to the right of access to the courts (Airey para 24, Steel and Morris para 59); (ii) the question is whether the applicant's appearance before the court or tribunal in question without the assistance of a lawyer was effective, in the sense of whether he or she was able to present the case properly and satisfactorily (Airey para 24, McVicar para 48 and Steel and Morris para 59); (iii) it is relevant whether the proceedings taken as a whole were fair (McVicar para 50, P,C and S para 91); (iv) the importance of the appearance of fairness is also relevant: simply because an applicant can struggle through "in the teeth of all the difficulties" does not necessarily mean that the procedure was fair (P,C and S para 91); and (v) equality of arms must be guaranteed to the extent that each side is afforded a reasonable opportunity to present his or her case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent (Steel and Morris para 62)."
"It is true that the test for article 8 as it is stated in the Strasbourg jurisprudence (whether those affected have been involved in the decision-making process, viewed as a whole, to a degree sufficient to provide them with the requisite protection of their interests) differs from the test for article 6(1) (whether there has been effective access to court). The article 8 test is broader than the article 6(1) test, but in practice we doubt whether there is any real difference between the two formulations in the context with which we are concerned. There is nothing in the Strasbourg jurisprudence to which our attention has been drawn which suggests that the ECtHR considers that there is any such difference. In practice, the ECtHR's analysis of the facts in the case-law does not seem to differ as between article 6(1) and article 8(1). This is not surprising. The focus of article 6(1) is to ensure a fair determination of civil rights and obligations by an independent and impartial tribunal. Article 8 does not dictate the form of the decision-making process that the state must put in place. But the focus of the procedural aspect of article 8 is to ensure the effective protection of an individual's article 8 rights. To summarise, in determining what constitutes sufficient involvement in a decision-making process (article 8), for the present purposes the standards are in practice the same"
"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."
"The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. There are things that the court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy. The important thing is that the questions which challenge the child's account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly. One possibility is an early video-recorded cross-examination as proposed by Pigot. Another is cross-examination via video link. But another is putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country."
"While ensuring that the allegations are properly put and responded to, the fact-finding hearing can be an inquisitorial (or investigative) process, which at 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."
Lady Justice Black:
Lord Justice McFarlane: