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State ordered to pay for representative lawyer by judge

16th Jan 2015

The government has been ordered to pay for a litigant in person to be represented at a hearing by the High Court.

Despite not being eligible for legal aid, Judge Clifford Bellamy, sitting in the Family Court, stated that the court held the power to direct HM Courts & Tribunals Service to bear the cost of a representative, rather than allow the litigant to cross-examine a child in court.

The proceedings in K & H (Children: Unrepresented Father: Cross-Examination of Child) relate to a case involving two young children and a 17-year-old. The teenager, from her mother’s previous relationship, is claiming that her step-father, the litigant and father of the two younger children, sexually abused her.

Bellamy said that it was important to establish whether the allegation was true before the court can consider contacting the younger children in the future. This raised two questions, he believed, the first being who should cross-examine the teenager, and the second whether HMCTS should have to pay for legal representation for the father.

To answer the first of the issues, it was decided by Bellamy that the 17-year-old should be required to give evidence at the finding of fact hearing, but that she could not be cross-examined by the father, a guardian of the children, or a judge.

Philippa Whipple QC, for the lord chancellor, told the court that it was the father’s choice whether or not to pay for representation, as he qualified above the £734 monthly threshold of disposable income and was therefore ineligible for legal aid. Bellamy disputed this however, calling the suggestion ‘absurd’ in assuming that the father was automatically able to pay for representation simply because his income exceeds regulations.

Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act offers exceptional case funding, and Bellamy said that this acts as a ‘safety net’ for those whose case does not qualify for legal aid. However, this does not prevent the state providing representation for cases when appropriate.

He declared that the court both could and should appoint a legally qualified advocate to cross-examine the teenager on behalf of the father. The costs of the legal representative will include reading the hearing bundle, watching a video-recorded interview, being instructed by the father, preparing for cross-examination, and attending the hearing at which the teenager will give evidence, must be paid by HMCTS, and assessed on the same basis as legal aid work.