Re K and H (Children) [2015] EWCA Civ 543

Posted on Friday, August 7th, 2015

A picure of Suzanne Foster a Law costs draftsman at Paramount Legal Costs LtdThis case concerned an appeal relating to a decision made in proceedings dealing with contact arrangements between the children, K and H, and their father.  Within the proceedings, Y, who was the half-sibling of K and H, made an allegation that she was sexually abused by the father of K and H.  This allegation was denied by the father.  It was decided by HHJ Bellamy that it was necessary for the Court to establish whether or not this allegation was true, before it could consider the question of contact with K and H.  A fact finding hearing was therefore listed.  At this stage in the proceedings, the father was a litigant in person.  It was decided that: (i) it was not appropriate for the father to cross-examine Y; (ii) it was not appropriate for the judge to put questions to Y to test her allegation; (iii) the Court should arrange for a legal representative to be appointed to cross-examine Y on behalf of the father; and (iv) the costs of the appointed legal representative should be borne by Her Majesty’s Courts and Tribunal Service.  The appeal was therefore brought by the Lord Chancellor.

Consideration was given to the relevant legislation, including Section 1 of the Courts Act 2003, which imposes a general duty on the Lord Chancellor to ensure an efficient and effective system within the Family Court and to ensure that appropriate services are provided; and Section 31G(6) of the Matrimonial and Family Proceedings Act 1984, which provides for the Court to put, or cause to be put, questions to a witness in the interests of a party who is not legally represented or unable to cross-examine a witness.  There were also issues surrounding the father’s rights under Articles 6 and 8 of the European Convention on Human Rights.

The appeal was allowed.  It was held that it was not possible to interpret Section 1 of the Courts Act 2003 or Section 31G(6) of the Matrimonial and Family Proceedings Act 1984 as giving the Court the power to require HMCTS to provide funding for legal representation and that the Court must respect the boundaries drawn up by Parliament with regard to the availability of public funding, as provided by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.  It was not accepted that the only way that cross-examination could have taken place was by a legal representative.  A number of options were outlined, including questioning by the judge, which would ensure that there were no breaches of Articles 6 and 8.  The Court therefore did not have the power to make the order.

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