Blog: Litigants-in-person in fact-finding hearings involving serious or complex allegations: a problem solved?

Since the introduction of Legal Aid reforms many parties who allege domestic violence are able to secure funding for representation, subject to meeting a number of (onerous) conditions.  The alleged perpetrators, however, usually cannot.  Where the allegations come to be considered by the court (either in the context of contested non-molestation proceedings or where a party seeks a Child Arrangements Order) the fact that one party is unrepresented presents real challenges.

One particular difficulty arises where a fact-finding hearing is required.  The court’s aim is to determine the truth (or otherwise) of the allegations.  In the past a judge has typically been assisted by the representatives on each side presenting the evidence and challenging it where necessary.  However it becomes something of a one-sided battle where only one party is represented.  This disadvantages both sides: the alleged perpetrator is restricted in their ability to properly challenge the evidence, and the alleged victim is subjected to cross-examination by the person they say caused them harm.  On either view this is not in the best interests of the child.

In the criminal courts where there are allegations of a sexual nature or of harm against a child, cross-examination by the alleged perpetrator would not be allowed.  However due to LASPO, the family court has little option but to consider the possibility.

There is no doubt that the family court is taking this problem very seriously.  A number of senior judges have written of their disapproval of the situation, and have given guidance as to the way forward. A summary of this guidance is given below, although it remains to be seen how the circuit and district judges will deal with the situation on the ground.

In Q v Q [2014] EWFC 7 the President adjourned private law proceedings for investigations to be made into representation for the father – a convicted sex offender who spoke almost no English – so that he could fully challenge an expert report.  The President suggested that if the Legal Aid Agency (‘LAA’) did not provide ‘exceptional funding’ then HMCTS (the court service) could be directed to pay, but noted that “this is an order of last resort. No order of this sort should be made except by or having first consulted a High Court Judge or a Designated Family Judge”.

The President noted that it may also be appropriate for the courts to take a similar approach in cases of serious non-sexual assault but that “it may be that it will not be appropriate in less serious cases.” He gave no conclusive view but noted that each case will depend on its particular facts.

HHJ Wildblood QC considered the issue in D v K and B [2014] EWHC 700 (Fam), a contact dispute in which the father was accused of raping the child’s mother. The father’s legal aid application had been considered and rejected twice.  In his judgment (in which he asked the Legal Aid Agency to think again, though he doubted that they would) he noted that a judge could not “sufficiently meet the justice of the case” by asking questions when he could not take the father’s instructions.  He further noted that “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”.

Most recently, in Re K and H (Children – unrepresented father – cross-examination of child) [2015] EWFC 1 HHJ Bellamy ordered HMCTS to pay for the Father’s representation in a case where allegations of sexual abuse had been made against him by a child and the court considered it necessary to avoid the father cross-examining his alleged victim.  It is of note that the judge rejected other possible options, including the appointment of a Guardian to cross-examine on behalf of the children, and for the judge to ask the questions. The court considered that it would be “wholly inappropriate” for a judge to have to effectively conduct the cross-examination, and noted that it will not normally be appropriate for the court itself to put questions where the case involves “issues which are grave and/or forensically complex”. 

Given the nature of the problem it will not take long for more applications of this type to be made. Given the well-documented shortages in the HMCTS budget it remains to be seen to what extent this new ‘power’ will meet the problems caused by LASPO.

If you are a litigant-in-person and unable to obtain Legal Aid, you could approach a charitable organisation for assistance or advice (such as the Citizens’ Advice Bureau, Bar Pro Bono Unit or the Kent Law Clinic).  Alternatively you can instruct a barrister for the hearing via Direct Public Access: Direct2barrister.  If that fails, you should draw to the attention of the other party and the judge to the possibility of the court funding representation for the fact-finding hearing.  However, the decision is ultimately one for the judge and is likely to be considered to be the exception rather than the norm.