In what appears to be the first order made under what we called the “shadow legal aid scheme” mooted in Sir James Munby P’s judgment in Q v Q, HHJ Bellamy (sitting as a High Court Judge) has made an order that the Court Service fund an unrepresented father who would otherwise have to cross-examine a child who has made allegations of abuse at a fact finding hearing – K & H (Children: Unrepresented Father: Cross-Examination of Child)  EWFC 1. In discussing Q v Q and making his order, HHJ Bellamy set out what he considered to be the principles to be applied, thus (para 74):
(a) It is the first duty of judges sitting in the Family Court to ensure that proceedings are conducted fairly (FPR 2010 rule 1.1). Failure to do so may lead to the court itself acting unlawfully (s.6(1) of the Human Rights Act 1998).
(b) Where a party is unrepresented (whether because legal aid is not available or by choice) and is ‘unable to examine or cross-examine a witness effectively’ the court has a duty to assist that party (s.31G(6) of the Matrimonial and Family Proceedings Act 1984). This requires the court ‘to put, or cause to be put’ questions to a witness.
(c) The court will itself put questions to a witness if it is satisfied that it is ‘necessary and appropriate’ to do so. It will not normally be appropriate to do so when the case involves issues which are grave and/or forensically complex.
(d) Where the court is satisfied that it is not ‘appropriate’ for the judge to put questions to an alleged victim, the court must arrange for (cause) a legal representative to be appointed to put those questions.
(e) The court may direct that the costs of the legal representative be borne by HMCTS.
(f) The court may nominate the legal representative who is to be appointed to undertake that task.
(g) The extent of the work to be undertaken by a legal representative so appointed should be made clear at the outset and should be proportionate.
(h) In those limited cases where legal aid is still available in private law Children Act proceedings there is a detailed regulatory framework governing the calculation of costs payable to (claimable by) a solicitor for undertaking such work. The fees payable by the Legal Aid Agency are less than a solicitor might charge a privately paying client for doing the same work. That has always been so. I can see no cogent argument for suggesting that a legal representative appointed by the court should be entitled to a higher rate of remuneration than if that work were undertaken under the legal aid scheme.
In this case, the Lord Chancellor accepted an invitation to intervene and put arguments to the Court, which were rejected. In essence, it was said that legal aid represented a complete statutory scheme for public funding of litigation, that there was therefore no power to direct funding outside it, and so Q v Q was wrongly decided. It remains to be seen whether this decision will now be appealed.
However, it should be noted that this was not a case where the father could not get legal aid because of LASPO scope cuts. Although his case was outside the scope of legal aid, he would never have got it anyway, as he wouldn’t qualify on means – it was for that reason that no application for exceptional funding was made. Even so, the Judge found that he was sufficiently impecunious that he couldn’t be expected to pay for his own representation.
As with successful grants of exceptional funding, we would be interested in hearing about, and posting on the blog, other examples of the use of this power.
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