About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Wednesday, 19 March 2014

Exceptional public funding

Picking up on my last post, in D v K and B [2014] EWHC 700 the court has asked that the Legal Aid Agency think again about treating the case as exceptional and granting public funding. Apparently even the following points have not yet persuaded them:

i) The seriousness of the allegations involved.

ii) The fact that if these issues were before a criminal court the Father would be prohibited by statute from cross examining the Mother in person. That is as a result of s34 of the Youth Justice and Criminal Evidence Act 1999.

ii) The allegation of rape is one of a number of serious allegations that are made. Any analysis of that allegation would have to be placed in context. I find it very difficult indeed to envisage how a judge asking questions on behalf of Father would be able to do so in a way that he felt was sufficient.

iv) Fourthly and notwithstanding the provisions of Schedule 10 of the Crime and Courts Act 2013 (which I have considered, although they are not yet in force) taking into account the point that I have made in iii) above and the fact that the judge could not take instructions, I have difficulty in seeing how that statutory provision in Schedule 10 would be perceived as sufficiently meeting the justice of the case.

v) Where allegations of this seriousness arise it is very important that the respondent to the allegation is given advice. That advice cannot be given to him by the judge and could not be given to him by the representative of the guardian.

vi) The issue that arises is of very real importance to the two adults but also to this child. If the Mother's allegations are substantiated there is a very real prospect that they may prove to be definitive of the relationship between this child and her Father.

vii) In fact finding cases of complexity a judge is expected to give himself full and correct legal directions. It is vital that those legal directions are correct and take account of the positions of both of the parties immediately involved.

viii) Although enquiry might be made of the Bar Pro Bono Unit or indeed of the Attorney General to see whether arrangements might be made for D to have free representation or the Attorney General to act as amicus curiae neither of those solutions presents itself as likely to be available and neither is anywhere near as satisfactory as D having his own representation. I regard it as highly unlikely that either avenue of enquiry would produce representation in any event. In March this issue was being investigated further.

ix) As to the position of the Guardian's representative everything that I have said about the position of the judge applies in at least equal measure to the guardian's solicitor if not more so. The guardian's statutory role is to promote the welfare of the child. It is no part of the roles of the Guardian or of the children's solicitor to adopt the case of one party in cross examination or argument. After the fact finding case is resolved it is essential that both parties retain confidence in the guardian and in the institution of CAFCASS. I therefore cannot see that the Guardian or the child's solicitor could be expected to conduct cross examination on behalf of this Father.

Crossing the lines: Re C (2013) - procedural fairness

I thought I would offer a reminder about a case which has recently become very dear to my heart: Re C 2013 EWCA Civ 1412 and which gave rise to a number of interesting points about the way in which litigants in person could be better supported. It also shows that lines will be considered to be crossed when complainants in criminal proceedings will be compromised as independent experts

Incidentally this is one of the few cases last year where public funding was granted on an exceptional basis. Needless to say the father did not get public funding for any of the follow up:

Ryder LJ found that there had been a number of procedural irregularities throughout the proceedings which caused the decision to be unjust and wrong:

* Evidence that was adduced orally at a without notice hearing was not recorded on the face of the order, nor was a direction made that that evidence be transcribed or contained in a statement to be served on the respondent. Rule 18.10(2) FPR 2010 requires the service of evidence on a respondent in support of a without notice application unless the court orders otherwise. A respondent's right to set aside or vary a without notice order must be contained in a statement on the order (rule 18.10(3) ) which was not contained in the without notice order made.

* No explanation was given as to why the respondent's right to set aside or vary the without notice order was constrained to having to give 24 hours' notice.

* There is a need for exceptional urgency to justify a without notice order being made. There was no evidence within these proceedings of what was the pleaded exceptional urgency.

* The pre-application protocol for mediation information and assessment (PD3A) was ignored in its entirety. This protocol is not optional.

* The family court advisor became a complainant in criminal proceedings, as a result of the father's behaviour, following which he was arrested and charged with offences under section 4 of the Public Order Act 1986. It was wholly inappropriate for the family court advisor to continue to advise within the proceedings.

* The family court advisor filed a report which detailed allegations of fact by the mother against the father previously unknown to the court. It read as if the allegations were true and there was no doubt that the family court advisor believed them to be true. It was not highlighted that the facts had not been established by way of a fact finding.

* On the day of the contested welfare hearing the family court advisor filed and served a chronology of events without notice of intending to do so and without direction by the court. It was a detailed schedule of hearsay evidence. It should not have been admitted without argument as it was highly prejudicial and of questionable probative value.

* At the contested welfare hearing the family court advisor gave evidence from behind a screen. Although it was not inconceivable that a professional witness might require such assistance, an application on notice to the parties with full reasons as to why this was required should have been made.

* The assumption of alleged facts against the father when no fact finding exercise had been conducted resulted in the judge's welfare evaluation being based on a false premise.