Re K and H: Cross-examination and impartiality

On 22 May 2015
the Court of Appeal considered the
case of Re K and H (Children) [2015] EWCA Civ 543, and
whether a judge has the power to order the court service to provide funding for legal representation outside the legal aid scheme in order for
an unrepresented party to cross-examine a child in family proceedings.

In this case, the father had applied for contact with his two children (K and H). Y, their half-sibling, alleged that the father had sexually abused her. The judge directed that Y should give oral evidence. The father did not qualify for legal aid and was unable to afford legal representation. The judge decided that it was inappropriate for the father or himself, the judge, to cross-examine Y, and ordered the court service to pay for legal representation.

Was it possible to interpret either section 1 of the Courts Act 2003 or section 31G(6) of the Matrimonial and Family Proceedings Act 1984 as giving the court the power to require the Lord Chancellor to provide funding for legal representation?

Statutory interpretation

In Q v Q [2014] EWFC 31, Sir James Munby said: ‘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 [the Family Procedure Rules] 1.1 and articles 6 and 8 [of the European Convention on Human Rights (ECHR)] cannot otherwise be met, the effect of the words “cause to be put” in section 31G(6) is, in my judgement, to enable the judge to direct that appropriate representation is to be provided by – and at the expense of – the court, that is, at the expense of HMCTS.’

The Court of Appeal disagreed with the interpretation of the two statutory provisions. It held that the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) is a detailed scheme, and the court must respect the boundaries drawn by parliament for public funding of legal representation: ‘The interpretation of the judge is impermissible: it amounts to judicial legislation.’

Other solutions proposed included:

• A direction that the order that Y should give oral evidence should be made subject to the condition that the father questioned her through a legal representative (although this might not be a viable option if the judge’s finding about the father’s inability to pay stood);
• Y should be questioned by the judge himself;
• Y should be questioned by a justice’s clerk; or
• A guardian should be appointed to conduct proceedings on behalf of K and H.

It was also suggested
that it might be helpful for the unrepresented party to prepare written questions for the court to consider in advance.

In this particular case, the appeal court concluded that the judge should probably have decided to conduct the questioning himself.

Impartial judge

With all due respect to the Court of Appeal, how can a judge, who must remain impartial and make findings, carry out the cross-examination in such a case?
No doubt, the judge here
feared he would be perceived as ‘descending into the arena and siding with the father’.

The judgment refers to the fact that questioning must always be conducted sensitively and fairly. But, if the father had a legal representative, the cross-examination would be rigorous. If the judge carried it out, and had to remain neutral, would the article 6 (and article 8) rights of the father be upheld? The judge could not ‘push’ the father’s case, and more rigorous cross-examination might have resulted in no findings being made.

What, also, is the impact on the subject children’s ECHR rights? And, the suggestion that a guardian should be appointed would mean that the case would cost considerably more than if representation for the simple purpose of cross-examination could be ordered.

There were, however, concerns expressed, in particular in relation to more complicated questioning, for example medical or other expert evidence, or from a vulnerable witness. But was not Y, who was only 17 when she was required to give evidence, also vulnerable?

So, the suggestion of the Court of Appeal, in order to avoid the risk of a breach of the convention, was that consideration should be given to the enactment of a statutory provision for (i) the appointment of a legal representative to conduct the cross-examination, and (ii) the payment out of central funds of such sums as appear to be reasonably necessary to cover the cost of the legal representative. SJ

District Judge Julie Exton sits at Bristol Civil and Family Justice Centre. She is president of the Association of Her Majesty's District Judges