A High Court judge has ordered the courts to cover the costs of representation for a litigant in person who was not allowed to cross-examine his step-child whom he was accused of sexually abusing. The issue was whether the litigant could have further contact with his children.
In the case of Re K and H (Children: unrepresented father: cross-examination of child), the father was above the £734 monthly threshold, precluding eligibility for legal aid. His Honour Judge Bellamy was highly critical of the notion that being above the threshold for legal aid eligibility (however marginally) automatically meant that he could fund his own litigation:
‘It would be absurd to suggest that such a person is better able to meet his own legal fees than his neighbour with a disposable income of £733 per month.’
It was argued that the father could afford representation (as he had previously been represented), but now chose not to use it. Counsel for the Lord Chancellor suggested a ‘robust approach’ to this, something which Judge Bellamy dismissed as a potential breach of the father’s Article 6 right to a fair trial. Judge Bellamy stated that the definition of ‘representation’ under section 42(1) LASPO was sufficiently wide-reaching to mean that certain aspects of representation were already provided by HMCTS, including provision of interpreters and bundles. The appointment of a legal representative to cross-examine the step-child was merely an extension of this. Published guidance has supported this view.
Judge Bellamy argued that the use of the ‘exceptional funding’ provisions under section 10 LASPO was meant for cases such as these, and concluded:
‘I do not accept that the comprehensive nature of the legal aid scheme precludes the State from providing, or the courts from requiring the State to provide, aspects of ‘representation’ for those who are not able to benefit from the scheme set out by LASPO in circumstances where this is necessary, appropriate and proportionate in order to safeguard their Convention rights and to ensure compliance by the court with its own duty to act in a way which is compatible with Convention rights. The court’s power to direct that the cost of certain activities should be borne by HMCTS is, as the President has said, ‘an order of last resort’. However, that the power exists at all is in my judgment absolutely clear.’
In using this power, Judge Bellamy ordered the appointment of a legal representative to cross examine the step-child on the allegations of sexual abuse. Costs were to be borne by the court basis on the same basis as those calculable for the work of a legally-aided client.
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