Blog Update: unrepresented parties and fact-finding hearings

In March 2015 I wrote of the emerging case-law which provided for HMCTS to fund legal representation in specific circumstances.  The cases of Q v. Q [2014] EWFC 31 and Re K and H [2015] EWFC 1 are examples of the court directing that representation of litigants-in-person must be funded by the Court Service for fact-finding hearings where no other solution is possible, to ensure that the parties’ Article 6 and 8 Convention rights are protected.

However the judgment in the appeal of Re K and H was handed down by the Court of Appeal on 22nd May, reversing HHJ Bellamy’s decision ([2015] EWCA Civ 543).  The Court of Appeal has decided that HMCTS cannot fund such representation.  The judgment is essential reading but the main thrust of the decision (as set out at para 31 by Dyson MR, who gave the only judgment) is as follows:

“LASPO provides a comprehensive code for the funding of litigants… I do not consider that it is possible to interpret either section 1 of the [Courts Act 2003] or section 31G(6) of the [Matrimonial and Family Proceedings Act] 1984 as giving the court the power to require the Lord Chancellor to provide funding for legal representation in circumstances where such funding is not available under a scheme as detailed and comprehensive as that which has been set up under LASPO. The court must respect the boundaries drawn by Parliament for public funding of legal representation.

Addressing the practical implications of the decision, Dyson MR concluded that “[i]n a simple straightforward case, questioning by the judge is likely to be the preferred option and it should present no difficulties” and would not breach the parties’ Convention rights.  He suggested that litigants-in-person be invited to prepare written questions for the court to consider in advance.  This would appear to totally over-simplify the dilemma faced by judges who may have to conduct lengthy questioning and walk the fine line between impartiality and investigation.

The Master did acknowledge that in some cases judicial questioning will not be appropriate and in such a case a lack of representation may well breach Articles 6 and 8.  In that circumstance the Master suggested that the government consider new legislation to allow for the appointment of a representative, to be paid for out of central funds.  Since the Ministry of Justice has thus far seemed to have little interest in the problem, it seems highly unlikely that the suggestion will be made law any time soon.