Q v Q  EWFC 31 (6 August 2014)
The England and Wales Family Court has determined that unrepresented litigants should be funded by the Court where no other public funding is available and the hearing will otherwise contravene the litigant’s right to a just and fair hearing.
This judgment is concerned with three unrelated family law proceedings in the UK that each raised similar concerns regarding the Applicants’ rights to a just and fair hearing. In each proceeding, the Applicant was a father who sought orders for contact with his child. The mother in each case had publicly funded representation and the father did not. The proceedings were further complicated because each Applicant had an allegation or a charge of a serious sex offence made against him.
In the case of Q v Q, the Applicant was a convicted sex offender, for sexual offences against young male children. His legal aid funding had been terminated and he could not otherwise afford a lawyer. He spoke little English and also relied on the services of a translator. On 21 May 2014, the President of the England and Wales Family Court adjourned these proceedings for contact orders. The earlier decision is summarised in this case note http://hrlc.org.au/publicly-funded-legal-representation-vital-to-fair-hearing/. The President’s invitation to the Ministry of Justice to make submissions on the appropriate solution was rejected on 25 June 2014.
In both Re B and Re C, the child’s mother alleged that she was raped by the Applicant. Under the relevant law, the perpetrator of alleged rape or other sexual offence was prohibited by statute from cross-examining the alleged victim in person. This meant that without publicly funded representation, the Applicants were denied the chance to cross-examine the mothers.
Each Applicant had unsuccessfully applied for “exceptional” legal aid funding under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (UK) (the LASPO Act). At the time of the judgment, only the Applicant in Re B had successfully accessed publicly funded representation through the Legal Aid Agency.
The President was concerned that without representation or other legal advice, each proceeding could contravene the relevant Applicant’s basic rights to a just and fair hearing as guaranteed by the Family Procedure Rules 2010 (UK) (the Rules) and the European Convention on Human Rights (the Convention).
In particular, the President was concerned that the proceedings would be contrary to rule 1.1 of the Rules, which provides that the court’s “overriding objective” is to “deal with cases justly, having regard to any welfare issues involved”. This involves ensuring that each case is dealt with fairly. The President was also concerned that the Court would be unable to act in a way that is compatible with Articles 6 (right to a fair trial) and 8 (right to respect for private and family life) of the Convention.
The President expanded on his comments in the earlier case of Q v Q  EWFC 7 (21 May 2014) and concluded that the lack of representation threatened to undermine the Applicant’s rights in each case. The President stated:
“The absence of public funding for those too impoverished to pay for their own representation potentially creates at least three major problems: first, the denial of legal advice and of assistance in drafting documents; second, and most obvious, the denial of professional advocacy in the court room; third, the denial of the ability to bring to court a professional witness whose fees for attending are beyond the ability of the litigant to pay.”
In Q v Q, these problems were exacerbated by the Applicant’s need for a translator. In Re B and Re C, the problems arose because of the complicated legal issues regarding the relationship between evidence in criminal and private proceedings.
The President concluded that in cases such as this, if all avenues of public funding were exhausted, the costs should be borne by the Court where it is necessary to avoid a violation of the Applicant’s basic rights to a just and fair hearing. This included the costs of a translator, of expert witnesses attending court, and the cost of representation in court. The President suggested that the cost of providing legal advice may also need to be borne by the Court, but did not express a concluded view on this point. The President emphasised that this was an order of last resort.
The President invited the Ministry of Justice and the Legal Aid Agency to comment on the implications of this judgment.
The President in this case adopted a progressive approach to ensuring a right to a fair and just hearing. The judgment highlights the relationship between publicly funded legal aid and a fair and just hearing, emphasising that the concept is broader than just representation in court.
As noted by the President, amendments to the LASPO Act mean that there is limited public funding in private law cases. The LASPO Act does allow funding on an “exceptional” basis under s 10(3) where the failure to provide such funding would be a breach of a person’s rights under the Convention. However, the legislature has set a higher threshold for this test than exists under the Convention, meaning that as little as 9 applications per year are successful. This raises serious concerns that violations of Convention rights are not being picked up by the LASPO Act.
In Australia, there are a number of common law decisions, including recent Victorian decisions, where criminal law proceedings have been stayed because legal aid funding was unavailable or inadequate. This case goes well beyond the Australian common law position in particular for its application in a family law context. It is also significant for the fact that the court found that it should fund the representation and related costs itself as an order of last resort when legal aid funding is unavailable.
The decision is available at: http://www.bailii.org/ew/cases/EWFC/HCJ/2014/31.html
Lauren Enright is a Law Graduate at King & Wood Mallesons.