Government must pay legal costs to protect human rights
The government needs to pay legal expenses in certain cases – even where legal aid has been refused, if the right to a fair trial is to be preserved, according to a High Court Judge.
Judge Bellamy said in Re: K & H EWFC1 2015 that sometimes the court would need to order the government to pay for the cost of legal representation in order to protect rights enshrined in the European Convention of Human Rights.
In this case, care proceedings were initiated by social services for two children aged 5 and 4 after the mother’s 17 year old daughter from a previous relationship made allegations of sexual abuse against their father. The father denied the allegations and a fact-finding hearing is scheduled for this week in which the daughter will give oral evidence.
The mother received legal aid but the father was forced to represent himself.
Problems arose during an earlier hearing because there was no one to cross-examine the daughter – other than the father himself. The question arose as to whether the court could order Her Majesty’s Court and Tribunal Service to meet the cost of legal representation for the father – as long as the cost was limited to covering the cross-examination.
An officer from Cafcass told the court that the daughter was reluctant to give evidence in court but that there was no reason why she should not. The officer said, however, that permitting the father to cross-examine her would be abusive and emotionally harmful.
The judge took into account the guidelines in relation to children giving evidence in family proceedings in Re W  EWCA Civ 57 and the fact that the father said he did not even want to cross-examine the seventeen year old himself, and he ruled the cross examination should be carried out by someone else.
The father’s disposable income was too high to attract Legal Aid. The judge satisfied himself that, once living expenses were factored in, it was obvious the father could not afford representation himself.
The judge ruled that, although legal aid is adequate for some, there remained unacceptable gaps. He said the court could require the government to provide limited representation for litigants who did not qualify for legal aid where necessary to safeguard European Convention rights. He ordered the court to appoint a legally qualified advocate to cross-examine the daughter on the father’s behalf.