Q v Q  EWFC 7 (21 May 2014)
The England and Wales Family Court adjourned family law proceedings for contact orders where the unrepresented applicant could not afford a lawyer, due to concerns that the hearing may contravene the applicant’s right to a just and fair hearing.
The applicant in the proceedings sought orders for contact with his seven year old son. The applicant was a convicted sex offender, having committed sexual offences against young male children. One of those offences was committed during the proceedings. He spoke little English and relied on an interpreter.
Reports were prepared by expert witnesses and presented to the Court stating that the son would not be safe in his father’s presence. They recommended that the applicant should not have contact unless and until the applicant undertook certain steps identified in the reports.
The respondent mother sought an order under s 91(14) of the Children Act 1989 (UK) to summarily dismiss the proceedings and bar the applicant from seeking further orders until the requirements of the reports were met.
In light of the convictions and the reports, the applicant’s legal aid funding was terminated. An appeal against that decision was dismissed. This meant that the applicant was self-represented in the proceedings and was unable to pay for the expert witnesses to attend court for cross-examination of their reports.
The President of the Court adjourned the matter to allow the Ministry of Justice to intervene and make submissions on the appropriate ways fund the applicant’s case.
There were concerns that the only way the applicant could avoid the summary orders was to challenge the expert reports. However, without proper funding for representation or to bring the experts to court for cross-examination, it was unlikely that the applicant could effectively do this.
There was a need to explore ways in which these issues could be overcome, as the case might otherwise not infringe the applicant’s substantive rights in court proceedings. Without expressing a view as to whether those rights would be infringed, the President was alive to the fact that the matter may not be just and fair, contrary to rule 1.1 of the Family Procedure Rules 2010 (UK). Rule 1.1 requires courts to deal with family law matters “justly”, and to ensure “so far as is practicable” that cases are dealt with “fairly”. This requires parties to be on equal footing.
Similarly, the President was concerned that the applicant would not be able to present his case fairly and properly. This would be contrary to his rights under the European Convention on Human Rights. In particular, it could contravene the Article 6 right to a fair trial, or the Article 8 right to respect for private and family life.
The President considered that it was appropriate to explore the ways in which these rights issues could be overcome by funding legal representation. This needed to be explored not only in the interests of the applicant, but in the public interest of other litigants as well. In family law proceedings, this included the interests of the child. The President noted that “fairness to the child can only be achieved if there is fairness to those who are litigating”. Unfairness to one parent could “rebound to the disadvantage of the child”.
The President identified possible funding solutions where legal aid is withdrawn:
- if the applicant is a public authority, the local authority should pay the costs necessary to ensure fair proceedings;
- if the respondent is in receipt of public funding, the costs should fall upon the respondent; and
- if there are no other options, the court as a public authority should pay the costs of ensuring fair proceedings.
The President invited the Ministry of Justice to make submissions on his funding suggestions, which needed to be scrutinised further. The matter was stayed pending these submissions to ensure so far as possible a fair trial, notwithstanding that the case had already lasted for over four years.
The judgment confirms the importance of representation in court proceedings to enable a fair hearing – in this case in the family law context. Most case law on need to provide representation to guarantee the right to a fair hearing concerns criminal law cases.
The case raises similar considerations to the Victorian Court of Appeal decision R v Chaouk  VSCA 99, which dealt with the consequences of Victoria Legal Aid’s cost-cutting measures. The Court of Appeal considered that the absence of an instructing solicitor during trial would result in unfairness, contrary to the applicant’s right to a fair trial entrenched by the High Court in Dietrich v The Queen (1990) 177 CLR 292. The Court of Appeal accordingly stayed the trial until appropriate funding was secured.
However, despite emphasising the importance of representation and the right to a fair trial, and going so far as to stay the trial, the Court of Appeal avoided admonishing the legal aid funding decision. The Court stated that:
Of course, it is not part of this court’s function to husband legal aid resources, still less to determine what amount of legal aid funding the State should provide. In a federation such as ours, these things may well reflect the present condition of Commonwealth/State finances and, in any event, they involve questions of policy which it is for the executive alone to decide.
The link between representation and a fair trial has been considered in subsequent cases – for example, MK v Victoria Legal Aid  VSC 49 and Polimeni v R  VSCA 72. However, unlike Q v Q, the Victorian decisions have not suggested ways to ensure a fair trial in matters where one party is unrepresented.
The decision is available at: http://www.bailii.org/ew/cases/EWFC/HCJ/2014/7.html
Lauren Enright is a Law Graduate at King & Wood Mallesons.