H v L

In the context of a father's applications for a parental responsibility order and a contact order (pursuant to the provisions of Section 4 and Section 8 of the Children Act 1989, hereinafter called "The 1989 Act") in respect of his 9 year-old daughter "R" by a non-marital relationship, it was determined that there should be a fact-finding hearing to determine the truthfulness or falsity of a number of allegations, including allegations that he had on one occasion sexually abused the older daughter (by a different father) of the mother of his child. That sexual abuse was alleged to have taken place when the older daughter (hereinafter referred to as "B") was 9½; she is now 20 years of age. There were, in addition, other allegations relating both to the father's alleged behaviour towards B, and in respect of his behaviour generally, and in particular in relation to the excessive consumption of alcohol and the consumption of class A drugs, in respect of which B could give evidence.

In the course of the long forensic history of this case there came a time in March 2006 where the father, no longer able to fund the continuing litigation, but in receipt of earnings which disqualified him from receiving public funding from the Legal Services Commission, began to act in person.

All I need add by way of background for the purposes of this Judgment is that B was a borderline anorectic, and a suicide risk. Thus the question of by whom she should be cross-examined was of particular import, although I do not believe that the resolution of the issue of who should cross-examine such a witness in other cases is dependent on the existence of such features of vulnerability (both physical and psychological).

The burden of proving the allegations fell upon the mother, since forensically it was she who made them, although the factual evidence had to come from B. The standard of proof required was the balance of probabilities, [see Re: H (Minors) (Sexual Abuse: Standard of Proof) AC 563.]

Article 6 of the European Convention on Human Rights and Fundamental Freedoms 1950 as incorporated into English Law by Schedule 1 of the Human Rights Act 1998 reads (in part)

In most, if not all, criminal prosecutions where a child is the alleged victim of abuse various procedures are adopted for the eliciting of such material. These procedures include the playing, where available and appropriate, of video- taped interviews of the child taken under the Achieving Best Evidence protocols. The child is then cross-examined (usually on a video-link) and, if necessary, re-examined. Although, in principle, Article 6 (3) (d) permits a defendant the right to cross-examine in person such a complainant, that particular right was circumscribed by section 34 A of the Criminal Justice Act 1988 which forbids a defendant in a criminal trial from cross-examining a child witness personally. A further inhibition on such a practice was put in place by section 35 of the Youth Justice and Criminal Evidence Act 1999 (hereinafter referred to as "the 1999 Act").

In civil cases, such as this, there is no automatic right given to a person facing such allegations to have a child witness appear in court for the purposes of giving evidence in chief and/or cross-examination. In Re D (sexual abuse) [2002] 1FLR 723 Dame Elizabeth Butler-Sloss P. sitting as a Divisional Court hearing an appeal from the justices in the context of care proceedings brought pursuant to the provisions of Part IV of the 1989 Act, said this:

What, however, is the position in civil proceedings in relation to adults? The quotation from Re D above continues:

The same position applies, subject to a very limited category of exceptions which I need not recite, in respect of adult evidence in criminal proceedings in either the justices or the crown court. There is an expectation that an adult witness will give evidence and be cross-examined. Following the widely publicised case of R v Milton Brown (the first instance trial taking place before His Honour Judge Pontius, and the appeal hearing taking place before Lord Bingham of Cornhill LCJ, and Turner and Penrey-Davy JJ. [Milton Brown RV [1998] EWCA Crim. 1486]) Parliament addressed, as a matter of urgency practice and procedure in the criminal courts where a defendant in person has to cross-examine, or may choose to cross-examine, an adult complainant in certain categories of case involving allegations of a sexual offence – see below.

There followed swiftly from the decision of R v Milton Brown the passing of the 1999 Act. By section 34 of that Act:

In considering this statutory provision I hereafter only refer to the position in relation to adult witnesses. Given that Article 6 of the Convention (see above) (and domestic law prior to its incorporation) nevertheless requires that a defendant in the criminal process shall have the right to have cross-examined any witness (even where they do not do so themselves) Parliament provided in section 38 of the 1999 Act as follows:

These provisions apply to a "sexual offence" as defined by section 62 of the 1999 Act, and include indecent assaults (see section 62 (1) (b)). Thus the allegations in the case I am considering would qualify, if the trial were in the criminal jurisdiction, for consideration under, and application of, these provisions. The court may go on, in such proceedings, to appoint an advocate to conduct the cross-examination. Necessary amendments to the statutory and regulatory framework governing the cost of such representation are contained in section 40 of the 1999 Act, and the cost of such an advocate falls on the public purse either absolutely or subject to means.

Assuming that the Family court takes the view that an adult witness should not be cross-examined by a litigant in person when making allegations of the kind covered by the provisions of section 62 of the 1999 Act (or indeed other allegations of the kind referred to in paragraph 1 above), how can the necessary enquiry proceed? Subject to the current practices of the Family court in protecting vulnerable witnesses, the right to have evidence tested and to cross-examine complainants set out in Article 6 (3) (d) of the Convention, although not strictly required by the terms of that provision, is an intrinsic part of the family court trial process.

The problem arises most acutely, but not exclusively, in private law proceedings. There is an increasing body of litigants in person, either from choice, or for lack of means (and in the absence of public funding). Thus, it seems to me, that the case I was trying is not likely to be unique, although it will be a comparative rarity.

In this case the child the subject of the proceedings (R) had a Guardian appointed pursuant to the provisions of Rule 9.5 of the Family Proceedings Rules 1991 as amended. However, that Guardian, for entirely understandable forensic reasons, regarded it as wholly inappropriate that the burden of cross-examining R's half-sister B, with whom she lives, should fall to the child's advocate. For reasons particular to the facts of that case which I need not describe further, I agreed. It may be that in some cases such a Guardian would feel able to conduct the cross-examination, although that cannot be a guaranteed outcome in any case.

In the instant case, as early as May 2006 Mr. Justice Ryder invited the parties to approach CAFCASS Legal to provide an advocate to conduct a cross-examination. They declined. It was their primary position that the advocate for the child R should conduct the cross-examination. I have already made it clear that on the facts of this case I disagree with that approach. However, CAFCASS Legal cannot be expected to provide advocates in such circumstances as a matter of regularity, if at all. Their remit is defined by statute, and does not encompass the provision of this particular service. See section 12 of the Criminal Justice and Court Services Act 2000 which defines the responsibilities of CAFCASS, and the "CAFCASS Practice Note" [2001] 2 FLR 151.

The Official Solicitor was also approached. He declined to provide an advocate. It is not difficult to discern why. The practice note issued under the Official Solicitor's name on 2nd July 2001 is entitled "Official Solicitor: Appointment in Family Proceedings [2001] 2 FLR 155". It summarises "the continuing rolé of the Official Solicitor in Family proceedings". I need not set out its terms in full. Under the sub-heading "Non-Subject Children" in paragraph 5 of that document, there is a limited provision in the following circumstances:

The Official Solicitor understandably took the view that the circumstances of the case did not qualify for his intervention. With regret, I respectfully agree with his decision.

The Free Representation Unit of the Bar was approached to see if they could provide an advocate. For a variety of reasons I need not elaborate, they did not feel able to do so. However, I would venture to suggest that it was entirely understandable that they should have been approached, and whilst commenting that the FRU provide an extremely valuable service to litigants, mostly in the field of tribunal work, the age and experience of most of the members of the Bar who generously volunteer their services to the FRU is not necessarily commensurate with the need for an experienced cross-examiner where such delicate issues as those I have described arise.

The Attorney-General does provide advocates to the court. But he does so only in a limited category of case, and the necessary function in this case described above does not fall within those categories. See particularly "Attorney-General's Memorandum: 19th December 2001, [2002] Fam. Law 229.

Paragraphs 3 & 4 of that memorandum read as follows:

In the case I have been deciding, as a result of an urgent request by me to the Attorney-General in the course of a pre-hearing review taking place two days before the three day fact-finding hearing, he, exceptionally, agreed to provide an advocate. I am extremely grateful to the Attorney-General, to the Treasury Solicitor who instructed counsel, and to Mr. Cellan-Jones who attended to conduct the cross-examination for a part of one day of the hearing. If I may say so, Mr. Cellan-Jones conducted the exercise with great skill and tact. I was immeasurably assisted by the help I received. But I would emphasise that the Attorney-General is not a regular "port of call" for the provision of such assistance, even where, as here, all other available options had been considered and either not been available or not been appropriate.

I have not of course overlooked the possibility that the judge may assist in such cases by taking over the questioning. Reverting to the criminal trial process there is comment in R v Milton Brown within the Judgment of Lord Bingham LCJ. on the judge's duties, and the carrying out of such a role by the judge. He said this:

These observations on past practice in criminal trials have been significantly overtaken by the passing of the 1999 Act. There will or may be cases where such a practice is still the appropriate one, but they are more likely than not to be rare. For my part, I feel a profound unease at the thought of conducting such an exercise in the family jurisdiction, whilst not regarding it as impossible. If it falls to a judge to conduct the exercise it should do so only in exceptional circumstances.

I would invite urgent attention to creating a new statutory provision which provides for representation in such circumstances analogous to the existing statutory framework governing criminal proceedings as set out in the 1999 Act. Such a statutory provision should also provide that the costs of making available to the court an advocate should fall on public funds. I can see no distinction in policy terms between the criminal and the civil process. Logic strongly suggests that such a service should be made available to the family jurisdiction. If it is inappropriate for a litigant in person to cross-examine such a witness in the criminal jurisdiction, why not in the family jurisdiction?