The President has just handed down a judgment in a family case, Q v Q  EWFC 31 which has implications for Court of Protection practitioners as well as for those working in the family courts.
The judgment related to three unrelated cases: Q V Q, where the President had previously handed down a judgment Q v Q  EWFC 7 ; Re B, which had been heard by HHJ Wildblood (D v K  EWHC 700 (Fam))and a third case, Re C.
All were private law proceedings where the father of child who lived with the mother sought a role in the child’s life. In all three the mother had legal aid and the father did not.
The cases raised problems which pre-dated but were exacerbated by LASPO. The President summarised the provisions of LASPO and exceptional funding regime; noting that the threshold for exceptional funding had been found too high in Gudanaviciene and others v Director of Legal Aid Casework  EWHC 1840 (Admin)and commented that the very small number of successful applications for exceptional funding suggested that the system was “inadequate” [at para 14].
Q v Q was an application for contact by a father who was a convicted sex offender, where the President had invited the Secretary of State for Justice to intervene and make submissions as to how expenditure for certain activities could be met if the court considered it to be necessary but it was not available from legal aid and in particular if it could be met from the other party’s certificate or from the court [para 23]. The Secretary of State declined to intervene; the father had asked the Public Law Project for assistance with exceptional funding application. The proceedings had stalled because the father required an interpreter and possibly a translation of documents; there was no funding to bring the experts in the case to court; and the father had to appear as a litigant in person.
In Re B a father applied for contact with his child. The mother asserted the father had raped her, necessitating a fact-finding hearing. As in the other cases the mother had legal aid and the father did not, giving rise to the spectre of the alleged perpetatrator cross examining an alleged victim in person. This would have been prohibited had this been a criminal case: s34 YJCEA 1999 .
Section 31G(6) Matrimonial and Family Proceedings Act 1984 was amended by Schedule 10 Crime and Courts Act 2013 and provides
“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.”
HHJ Wildblood found this criteria to be met in January 2014 . Following this the father eventually succeeded in obtaining legal aid after commencing judicial review proceeding sand following the judgment in Gudanaviciene.
Re C again concerned an application for contact by a father where the mother asserted that he had raped her. The father was awaiting trial at the Crown Court.
The President noted at para 43 that:
“The absence of public funding for those too impoverished to pay for their own representation potentially creates at least three major problems: first, the denial of legal advice and of assistance in drafting documents; second, and most obvious, the denial of professional advocacy in the court room; third, the denial of the ability to bring to court a professional witness whose fees for attending are beyond the ability of the litigant to pay. Each of these problems is, of course, exacerbated if the litigant needs a translator to translate documents and an interpreter to interpret what is going on in court.”
By way of setting the scene he referred to the over-riding objective of dealing with cases justly, set out in FPR 1.1 (and at COPR3.1) as well as the requirements of the courts to act consistently with Articles 6 and 8 of the European Convention and the requirement that A6 rights should be effective. Mantovanelli v France (Application no 21497/93 (1997) 24 EHRR 370) indicated indicates the significance of the right to an adversarial hearing guaranteed by Article 6 specifically in the context of an expert’s report which is “likely to have a preponderant influence on the assessment of the facts by [the] court.” (at para 49).
In connection with the need for an interpreter in Q v Q the President noted that HMCTS would provide an interpreter in domestic violence cases or those involving children and commented [at para 53) that where appropriate and if no one else could pay “HMCTS will also, I imagine, pay for the translation of documents needed”, and noted that he had made orders to this effect in this and other cases.
As regards the attendance of the expert the President referred to the requirement that expert evidence should only be obtained when necessary to assist the court in resolving the proceedings ‘justly’ (s 13(6) Children and Families Act 2014).
“56.In principle, the first question in that situation must be, is it, in the view of the court, “necessary”, if the proceedings are to be resolved “justly”, to have the expert in court to answer questions, or will it suffice for the court to be able to read the expert’s report? If the proceedings can be resolved “justly” without requiring the expert’s attendance, then there is no reason why public funds should be spent on something which is, on this hypothesis, unnecessary. If, on the other hand, it is necessary for the expert to attend court to enable the proceedings to be resolved justly – and that must always be a question for determination by the case management judge, not for mere agreement between the parties – then it follows, in my judgment, that the obligation on the State is to provide the necessary funding if a litigant through poverty is unable to pay the cost.
57.In the final analysis, if there is no other properly available public purse, that cost has, in my judgment to be borne by the court, by HMCTS. It is, after all, the court which, in accordance with FPR 1.1, has imposed on it the duty of dealing with the case justly. And, in the final analysis, it is the court which has the duty of ensuring compliance with Articles 6 and 8 in relation to the proceedings before it.”
What if the litigant does not have access to competent legal advice on the difficult questions raised by the allegations against the fathers, raising questions as to whether they are compellable witnesses and the extent to which they could be required to answer – matters the President described as “deep waters”?
The problems from the lack of representation generally were exacerbated by the “acute tensions” where an alleged perpetrator might cross-examine an alleged victim. This had been raise in 2006 in H v L and R  EWHC 3099 (Fam),  2 FLR 162,
In the President’s view S31G(6) clearly anticipated questions being put by someone other than the judge and he held [at para 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.”
Applying this to the cases before him the President noted that the issues in Re B had been resolved. If the father’s application for exceptional funding in Q v Q was not granted the costs of the experts, whose attendance the judge found to be necessary, would have to be met by the court.
With regard to Re C the President concluded:
85. I have however come to two conclusions which I can and ought to set out. 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  EWHC 1719 (Fam),  1 FLR 589, para 51, the admissibility in the criminal proceedings of any admissions made in the family proceedings is in the final analysis a matter for the criminal, 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 related 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 the 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.
87.I add only this. If, on the merits, the circumstances in Re B were such as to bring the father’s application within section 10(2)(a) of LASPO, and the LAA has conceded the point, then it might be thought that the father’s claim in Re C is a fortiori.
88.If the father’s application for public funding under LASPO is successful, then all well and good. If it is not, then I will have to consider what, if any, further order to make. I am inclined to think that, for all the reasons already indicated, the father in Re C requires access to legal advice beforehand and representation at the fact-finding hearing to avoid the very real risk of the court being unable to deal with the matter justly and fairly and of his rights under Articles 6 and 8 being breached. I am inclined to think, therefore, that, if he is unable to afford representation and pro bono representation is not available, and if there is no other properly available public purse, the cost will have to be borne by HMCTS.”
The President emphasized that directions that HMCTs should meet the cost of certain activities should only be met as a last resort and then only following consultation with a HCJ or designated family judge. Such directions may or may not be appropriate in cases which involve allegations of either serious non-sexual assault or of sexual assaults of a less serious nature.
Comment: The President concluded that the Ministry of Justice, the LAA and the Courts Service “may wish to consider the implications” of his judgment. It is likely that this will have far-reaching implications in the most extreme cases and no doubt will be considered by practitioners involved in other cases where the facts are different but where the lack of funding- including even exceptional funding- gives rise to a “very real risk” that the Court cannot deal with the matter fairly. In the Court of Protection context the issue of funding for expert evidence is a familiar one, and is also affected by the decision of the Court of Appeal in JG v The Lord Chancellor and others:  EWCA Civ 656.