The Government v Justice (Round Two)
Our blog “there is a price for justice but at whose expense” (http://www.firstfordivorce.blogspot.co.uk/2014/08/there-is-price-for-justice-but-at-whose.html) discussed a Judgment given by Sir James Munby considering the possibility of the Ministry of Justice being ordered to cover the costs if there is no other properly available public purse in accordance with the Court’s duty to deal with the cases justly. An Order has now been made where the Court has done just that.
The proceedings in K & H (children: unrepresented father: cross examination of child) relate to two young children and a 17 year old daughter from the mother’s previous relationship. Within the proceedings the 17 year old had made allegations that her step father, the father of the younger children, had sexually abused her. The father was representing himself as he was ineligible for Legal Aid due to his income.
Unfortunately for the father, s.10 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 which offers exceptional case funding did not seem to apply. This is usually of assistance when the client is financially eligible but is unable to access Legal Aid due to being unable to satisfy other requirements such as the requirement to show that they have been a victim of domestic abuse occurring within the last 24 months.
Although the step father was financially above the threshold for consideration of Legal Aid the Judge rejected arguments that it was therefore his choice whether to pay for representation stating that it would be absurd to suggest that the father automatically had the means to pay for representation just because his income exceeded the regulations.
The Judge considered it absolutely necessary that there should be a Fact Finding Hearing to establish whether or not the 17 year old girl’s allegations were true. The Fact Finding Hearing would require the 17 year old to give evidence and to ensure a fair hearing, she would need to be cross examined. It would however be completely inappropriate for her to be cross examined by her step father himself given that he was the alleged perpetrator. In light of this, the Judge said that the Court can, and should, appoint a legally qualified advocate to cross examine the teenage daughter on the father’s behalf. His Honour Judge Clifford Bellamy ordered that the legal representative’s costs including; the costs of reading the hearing bundle, watching a video recorded interview, taking instructions from the father, preparing for cross examination and attending that part of the hearing in which the teenager gave evidence must be paid for by HMCTS and be assessed on the same basis as if the work were being undertaken for a legally aided client.
With the cuts in Legal Aid, it would seem likely that this is not the last time that this power will be utilised. The Chancellor will no doubt be anxiously considering a situation where judges have effectively taken the reigns of determining funding which whilst of the type of last resort, is none the less a drain on public funds which is not likely to have been budgeted for. With the decision, subject only to the judges discretion and not constrained by regulations, in this case at least, it has gone even further than plugging a gap left as a result of the legal aid cuts but given the opportunity of funding to a party who would not even have been eligible under the previous system.
Karen Johnson is an Associate Solicitor and Family Mediator of Breeze and Wyles Solicitors Ltd. A Graduate of the University of East Anglia who then completed her Legal Practice Course at the College of Law in London, qualified as a Solicitor in 2002 working in a local High Street Firm before joining Breeze & Wyles Solicitors in 2009 and becoming an Associate with the firm in 2011. Karen is a highly skilled and experienced Family Solicitor with in excess of 10 years experience of working in Family Law. She is a Resolution Accredited Specialist in the fields of Domestic Violence and Financial Matters. Karen is additionally a Family Mediator trained by and a member of the Family Mediators Association (The FMA) an association with over 20 years experience of Family Mediation.