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Court of Appeal allows Lord Chancellor’s appeal against order that HMCTS should fund father’s legal fees

Association of Lawyers for Children and Coram Children’s Legal Centre intervene

In Re K-H (Children) [2015] EWCA Civ 543 the Court of Appeal has allowed an appeal by the Lord Chancellor against an order that Her Majesty's Courts and Tribunals Service (HMCTS) should fund a father's costs of a legally qualified advocate to cross-examine his daughter on his behalf. The appeal was brought against the decision of His Honour Judge Bellamy sitting as Deputy High Court Judge in Re K and H (Children: unrepresented father: crossexamination of child) [2015] EWFC 1.

The proceedings in the Family Court at Leicester concerned arrangements for the father to spend time and have contact with his children (K and H). The mother's older daughter (Y) alleged that she had been sexually abused by the father. There was to be a fact-finding hearing for the court to determine the truth of the allegations and what impact, if any, this would have on the application before the court regarding child arrangements for K and H.

The court determined that Y should give live evidence to the court. The father was not legally represented: he was not eligible for legal aid and said he could not afford legal representation, which the court considered was not unreasonable considering his income and outgoings. His Honour Judge Bellamy's decision was that HMCTS should fund the costs of a legally qualified advocate to cross-examine Y on the father's behalf, because it was not appropriate for the father to cross-examine Y or for the judge to put questions to Y to test Y's allegations. Support for the proposition that the judge could order HMCTS to provide such funding can be found in the judgments of Sir James Munby, President of the Family Division in the cases of Q v Q (Private law: Public funding) [2014] EWFC 31; [2015] 1 FLR 324 and in Re D (Non-Availability of Legal Aid) [2014] EWFC 39; [2015] 1 FLR 531.

Both the Association of Lawyers for Children (ALC) and Coram Children's Legal Centre (CCLC) are concerned about the issues raised in this case, and so applied to the Court of Appeal to intervene. Permission was granted. The interveners were represented by Deirdre Fottrell QC and Marlene Cayoun (both of 1 Garden Court Chambers and acting pro bono). The primary position of the interveners was that where children give evidence to the court, and are to be cross-examined or asked questions by or on behalf of litigants in person, this presents a significant difficulty for the trial judge who must be afforded wide discretion to provide such assistance as is necessary to protect the rights of the individual child (whether that child is the subject of the proceedings or not). The Court of Appeal upheld the appeal of the Lord Chancellor and so found that judge's decision was wrong and that there was no power for the judge to order HMCTS to provide the funding.

Noel Arnold, Director of Legal Practice at CCLC who was the solicitor for the interveners (acting pro bono) said:

"We are pleased to note that the Court of Appeal has acknowledged the difficulties presented in this category of case and has suggested that there should be consideration given to creating a statutory provision to cater for these complex situations. We strongly encourage Government to take steps to remedy this problem."

Maud Davis and Nicola Jones-King, Co-chairs of the ALC, said:

"It is vital that children's voices are heard in these very difficult situations, and that they can safely give evidence if the court decides that is necessary. If the law as it stands makes no proper provision for this to happen, then there is an urgent need for statutory provision."

22/5/15