LASPO: Court has no power to stop sexually abused being cross-examined by alleged perpetrator

Reform is urgently needed to allow vulnerable witnesses to be legally represented, following cuts to legal aid and an increase of litigants in person (LiP).

On Friday 22 May, the Court of Appeal ruled in favour of the Lord Chancellor, in an appeal against the decision of His Honour Judge Bellamy in K&H (Children: Unrepresented Father: Cross-Examination of Child).

While the Court of Appeal overturned an order for the government to fund representation for a LiP because the court had 'no power' to make said order, Master of the Rolls Lord Dyson, pictured, suggested a change in the law to make public funding available to appoint a lawyer for cross-examination purposes in certain cases.

The case concerned whether a (LiP), a father of two young children, could cross-examine his 17-year-old step-daughter. The child had alleged to have been sexually abused by the litigant.

In the original proceedings, HHJ Bellamy ruled that the costs of a legally qualified advocate to cross-examine the mother's oldest daughter (Y), whose evidence was crucial to determining the outcome of the case, should be met by HMCTS.

Jane Wilson, chair of Resolution's domestic abuse committee, said that the result raises some interesting questions, if not significant challenges, for those working with victims of domestic abuse where one party is a LiP.

'With the father in the case acting as a litigant in person, it was not appropriate for him to cross-examine Y. Nor, it should be noted, did he wish to do so. It was clear that the father was not eligible for legal aid; yet nor was he in a position to pay for legal representation,' remarked Wilson.

In the Court of Appeal, Lord Dyson said the judge 'should probably have decided to conduct the questioning himself', rather than appoint a legal representative.

The suggestion, however, is not one which Wilson gives much credence to: 'Although this is a "less worse" scenario than being questioned by the perpetrator, it could give the impression to the victim that the judge is on the side of the alleged perpetrator.'

HHJ Bellamy's call for HMCTS to fund advocates has been supported by the president of the Family Division on two separate occasions.

In addition, the final report of the Vulnerable Witnesses and Children Working Group states:

'In all family proceedings the lack of appropriate support and assistance for witnesses, whether they are parties, the children and young people or interveners would amount to a denial of justice. Failure to provide sufficient and adequate support for vulnerable or intimidated witnesses whether they are children, young people or adults results in a concomitant failure in their ability to give their best evidence, in turn directly undermining the likelihood of the judge or tribunal reaching a fair decision; it is justice denied.'

Wilson added: 'I would hope that neither the Lord Chancellor nor HMCTS are in the business of denying justice to people. So the only conclusion is that support must be given to enable a fair decision to be reached. Regrettably, the report did not go so far as to recommend the funding of an advocate to cross-examine vulnerable witnesses.'

Lord Dyson ruled that LASPO provides a 'comprehensive' code for funding litigants and, as a result, the court did not have the power to order the government to provide funding for legal representation in circumstances where funding was not available.

However, commenting on the judgment, Wilson said that the law is in need of change.

'The judgment also highlights that there is currently provision in the criminal court to allow payment for legal representatives to protect vulnerable witnesses. It's only right and proper that the same provision is made for victims of domestic abuse in the Family Court,' she added.