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Children: Private Law Update (September 2014 )

Alex Verdan QC of 4 Paper Buildings considers recent judgments in private law children cases, including the President's judgment on legal aid funding in Q v Q.

Alex Verdan QC, 4 Paper Buildings

Alex Verdan QC, 4 Paper Buildings

In this private law update I will consider:

Recourse to legal aid funding in private law cases 

Q v Q; Re B (A Child); Re C (A Child)
[2014] EWFC 31
In these cases the President considered three recent cases involving the issue of recourse to public funding. In all three cases the fathers were seeking contact and were unrepresented, and the mothers received legal aid. The President delivered a single judgment summarising the legal framework governing the provision of legal aid in private law cases, and addressed the criteria for funding.

Facts of the cases
Q v Q
concerned a father who appeared unrepresented. He was a convicted sex offender who spoke no English and wished to challenge the recommendations of an expert assessment completed within those proceedings. The President heard the case and invited the Secretary of State for Justice to intervene for the purposes of making submissions in respect of the funding difficulties of the father. The Secretary of State refused.

Re B concerned a father appearing in person who had been accused of rape. The father threatened to judicially review the decision of the Legal Aid Agency not to grant funding and the LAA agreed to reconsider. The Agency refused the application for funding.

Re C was another case involving a father appearing in person who was the subject of allegations that he had raped the child's mother.

The cases raised three common issues:

(i) The denial of legal advice and of assistance in drafting documents

(ii) The denial of professional advocacy in the court room

(iii) 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.

The legal framework
Public funding is not available for private law children cases save for those who have suffered, or are at risk of suffering domestic abuse, or where the other party to the proceedings is a risk to the children (Legal Aid, Sentencing and Punishment of Offenders Act 2012, Schedule 1, Part 1, paras 12 and 13 (LASPO) and regulations 33 and 34 of the Civil Legal Aid (Procedure) Regulations 2012).

The provisions concerning the funding of 'exceptional cases' are set out in s 10(3) of LASPO.

Public funding is available in 'exceptional cases' – where the Director of the Legal Aid Agency (LAA) has (a) made an exceptional case determination in relation to the individual and the services, and (b) has determined that the individual qualifies for the services.

An exceptional case determination is a determination where a failure to do so would be a breach of –

a. the individual's Convention rights (within the meaning of the Human Rights Act 1998),

b. any rights of the individual to the provision of legal services that are enforceable EU rights.

The Guidance issued by the Lord Chancellor says that this is 'to be used in rare cases' where the risk of the breach of material rights 'is such that it is appropriate to fund'.

The legality of this guidance was recently considered by Collins J in Gudanaviciene and others v Director of Legal Aid Casework and another [2014] EWHC 1840 (Admin) (subject to appeal) and held that the guidance above "is defective in that it sets too high a threshold". He came to two further conclusions that are relevant for present purposes:

'ECtHR jurisprudence suggests that a high level of probability …. [that convention rights will be breached] ….. is required. I see no reason why that should not be applied in s.10(3)(a) since Parliament must be taken to have appreciated that that was how breaches could be established. This seems to me to be the correct approach if s.10(3)(a) is to have any sensible application. Thus if the Director is satisfied that legal aid is in principle needed when its refusal would to a high level of probability result in a breach, s.10(3)(a) is met and means and merits will determine whether legal aid is to be granted and to what extent.' [44] and

'If legal aid is refused, there must be a substantial risk that there will be a breach of the procedural requirements, because there will be an inability for the individual to have an effective and fair opportunity to establish his claim.' [50]

In considering the general principles enshrined in the Family Procedure Rules, FPR 1.1(1), which sets out that the court is to 'deal with cases justly, having regard to any welfare issues involved,' and the s 6(2) of the HRA 1998, the President reached the following conclusions on funding:

Her Majesty's Courts and Tribunal Service (HMCTS) will pay and provide interpreters in family cases which involve domestic violence and cases involving children. This is irrespective of whether solicitors are involved or public funding is available.

Also, where appropriate, and if no one else can pay, HMCTS will pay for the translation of documents.

Attendance of experts at court
In circumstances where the attendance of an expert for the purpose of giving evidence cannot be properly obtained by any other means, HMCTS has a duty to bear such costs in accordance with FPR 1.1 and Article 6 ECHR.

Legal advice 
The President considered this to be 'a difficult point of real complexity' and was unable to come to a conclusion on it without hearing full argument. The cases relate to the fathers being accused of criminal offences. This raised the question as to whether the fathers are compellable witnesses in the family court. Can they take advantage of privilege against self-incrimination? What advice should they be given as to whether or not to give evidence?

The protection against self-incrimination provided for by section 98 Children Act 1989 available under Part IV or V of the Act is not available in private law proceedings. The President, whilst not making a finding on this point, was of the view that a party in private law proceedings could be compelled to give evidence, even if in doing so he may incriminate himself, but that any statement or admission would not be admissible in criminal proceedings.

Representation at court
The President referred to s.31G(6) of the Matrimonial and Family Proceedings Act 1984:

"(6) Where … 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, which imposes a duty on the court where a party who is not legally represented is unable to examine or cross examine a witness effectively." 

If these criteria are satisfied, and if the judge is satisfied that the essential requirements of a fair trial required by FPR 1.1 and Article  6 and 8 cannot be met in any other way then the court has power to direct that appropriate representation is to be provided at the expense of HMCTS.

Court timetables

Re W (Children)
[2014] EWFC 22
Practitioners are advised to take heed of the President's recent decision in which he emphasised the strict requirement to comply with court timetables. The President also highlighted the requirement pursuant to FPR 2010 PD 27A to lodge position statements with the court by 11am the day before the hearing.

Children giving evidence in fact finding hearings

Re B (Child Evidence
) [2014] EWCA Civ 1015
This was an appeal from HHJ Cameron's decision to direct a section 7 report on whether to allow G (aged 13 years), the subject child's older sister, to give evidence at a fact finding hearing concerning domestic violence between the parents.

In making the order the judge considered that pursuant to Re W [2010] UKSC 12 [30]

"… the consequence of the balancing exercise will usually be that the additional benefits to the court's task in calling the child do not outweigh the additional harm that will do to the child."

The father appealed the decision arguing that although the judge applied the Re W factors she failed to give them appropriate weight. The judge had been wrong in directing a report prior to deciding whether G should give evidence, and in any event the court had sufficient evidence to dispose of the application without the need to have G give evidence. Moreover, he said that it was rare for children to be called to give evidence in domestic violence cases.

In dismissing the appeal the Court of Appeal held:

(i) Re W principles apply to public and private law proceedings alike

(ii) Whilst G was not the subject of the contact application the court still had to consider the welfare of the child in considering whether she should give evidence.

(iii) The judge was yet to decide whether G should give evidence and that approach was sound.

(iv) The judge was aware of the need to consider the limitations of G's evidence in deciding whether to direct her to give evidence.

Temporary removal from the jurisdiction

Re H [2014] EWCA Civ 989
This was an appeal of a decision to permit a mother to travel to Iran with the parties' three year old daughter.

The mother had a residence order and the father a contact order. In private law proceedings, by agreement the father was prohibited from removing the child from the jurisdiction, and the mother was permitted to remove the child from the jurisdiction temporarily save for travel to Iran.

The mother subsequently sought to remove the child to Iran for a holiday.

The father relied upon advice from the Foreign and Commonwealth Office, which advised against all but essential travel to Iran.

The Court of Appeal in allowing the appeal cited Re K (removal from jurisdiction: Practice [1999] 2 FLR 1084 and Re R (A child) [2013] EWCA Civ 115 at [23] which provides the following guidance: 

In this instance the FCO guidance and lack of safeguards led the Court of Appeal to find that it should err on the side of caution.

Safeguarding checks on an individual who is not a party to proceedings

Re D (Child) [2014] EWHC 2376 (Fam)
This was an application by Cafcass for safeguarding checks to be completed on a step-father of the children subject to private law proceedings.

The father had applied for a contact order in respect of the family's two children. The children lived with their mother and step-father.

The children had been joined parties to proceedings and were represented through Cafcass. The children said they wished to see their father and they did not like their step-father, describing him as controlling.

The mother and step-father were unwilling for the checks to be undertaken and Cafcass brought an application.

Bodey J, in granting the application, gave the following guidance on safeguarding checks on individuals not party to proceedings [24]:

(i) that there is a public interest in the court having information which may be relevant to its determination of a child's welfare in private law proceedings;

(ii) that any relevant individual who is not a party has a right to respect for his private life, which includes maintaining the privacy of data retained about him by local authorities and the police;

(iii) that the court must therefore balance the individual's right to privacy against the public interest in the due administration of family justice and the need to safeguard the children who are the subject of the proceedings;

(iv) that, since it is mandatory under the CAP for safeguarding checks to be completed on the parties to the application, departure from that approach for individuals who are part of the same household as the child should logically and generally require some good reason;

(v) that the nature of the application before the court, whilst a relevant consideration, is not determinative since the court's concern for the welfare of the child is not necessarily limited to making those orders specifically applied for by the parties;

(vi) that the safeguards about the handling, transmission and storage of data provided within the Disclosure Protocol between CAFCASS and ACPO must be applied to any disclosure of information concerning other relevant individuals from the police and/or from local authority records; and

(vii) that the court should generally require undertakings from CAFCASS about (a) the confidentiality of information which it obtains by way of safeguarding checks; (b) its duty to pass to the court only such information as may be relevant to the issues in the case or to the general welfare of the child; and (c) its duty not to disclose any of the information obtained to anyone else without the leave of the court.