The High Court has ordered the government to pay for a litigant in person to be represented at a hearing despite his lack of eligibility for legal aid.
His Honour Judge Clifford Bellamy (pictured), sitting in the Family Court, said the court had the power to direct that HM Courts & Tribunals Service bears the cost of a representative rather than allow a litigant to cross-examine a child in court.
The proceedings in K & H (Children: Unrepresented Father: Cross-Examination of Child) relate to two young children and a 17-year-old daughter from the mother’s previous relationship. The 17-year-old had alleged that her step-father – the litigant and father of the younger children – had sexually abused her.
Before the court can consider future contact with the younger children, Bellamy said it was important to establish whether the teenager’s allegation was true.
The case, he said, raised two questions: first, who should cross-examine the teenager and secondly whether HMCTS should have to pay for the father’s legal representation.
On the first issue, Bellamy said the 17-year-old was required to give evidence at the finding of fact hearing, but that she could not be cross-examined by the father, the children’s guardian or even a judge.
Philippa Whipple QC, for the lord chancellor, told the court that as the father was above the monthly threshold of £734 disposable income a month (and therefore ineligible for legal aid) it was his choice whether to pay for representation.
But Bellamy disputed this, stating it would be ‘absurd’ to suggest that the father automatically had the means to pay for representation just because his income exceeded the regulations.
The judge said section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act, which offers exceptional case funding, acted as a ‘safety net’ for those whose case is outside the scope of legal aid. But this should not, he concluded, preclude the state from providing representation for other cases where appropriate.
Bellamy said: ‘The court’s power to direct that the cost of certain activities should be borne by HMCTS is, as the president [of the Family Division] has said, “an order of last resort”.
‘However, that the power exists at all is in my judgment absolutely clear.’
The judge said the court can and should appoint a legally qualified advocate to cross-examine the teenager on the father’s behalf.
The legal representative’s costs, including the cost of reading the hearing bundle, watching a video-recorded interview, taking instructions from the father, preparing for cross-examination and attending that part of the hearing at which the teenager gives evidence, must be paid by HMCTS and be assessed on the same basis as if the work were being undertaken for a legally aided client, he said.