Tuesday, 6 January 2015

Lack of legal aid for a father in the family court ...

Re K and H (Children: unrepresented father: cross-examination of child [2015] EWFC 1 is an important family court decision.  His Honour Judge Bellamy (sitting as a Deputy High Court Judge) has held that Her Majesty's Courts and Tribunals Service (HMCTS) must pay for a father's legal representation given that the father is alleged to have sexually abused his daughter referred to as Y.  There is a need in the case to establish - as a question of fact -whether the allegations against the father are proved.  In order to do that Y must give evidence and be cross-examined and it is in relation to the cross-examination that the father requires legal representation.  It should be noted that the father does not actually seek to cross-examine Y himself but has sought and been denied legal representation to do so.  This judgment merits careful reading in full.

Whether the Ministry of Justice will seek to use taxpayer's funds to appeal this remains to be seen.  It certainly seems ironic that the Lord Chancellor briefs a Queen's Counsel to argue that a litigant in person should not have legal aid but the denial of legal aid is an unjust consequence of the cuts imposed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.  However, as a reading of the judgment shows, the court is itself a public authority and under a Human Rights Act duty to ensure a fair trial of the case.

Of course this is not a criminal case but the allegations against the father are clearly serious.  In a criminal case, the accused is now prevented from personally cross-examining the complainant of a sexual offence - Youth Justice and Criminal Evidence Act 1999 s.34

Related post:  October 2014 - Family Court and (lack of) legal aid

See also Q v Q [2014] EWFC 31


  1. There will be a case where a father in this position asserts his right to act in person and cross-examine the accuser. I do not see how he can be refused that right. It took primary legislation to abrogate the right of a man accused of rape to act in person and cross-examine the complainant - the "guidelines" to which Judge Bellamy refers appear to me to be blatantly ultra vires.

    1. The father did not wish to cross-examine the girl personally. He has consistently tried to get legal aid for that purpose. Even on the judge's order, legal aid would be limited to counsel undertaking the cross-examination.

  2. Agreed - this is not the case which I predict. But it will happen.