Court of Appeal rules against non-legal aid public funding in family cases.

The Court of Appeal has handed down an important judgment in Re K and H (Children) [2015] EWCA Civ 543, which answers the suggestion by the President of the Family Division in QvQ, that family judges could order funding by HM Courts Service in appropriate cases where the relevant litigant did not qualify for legal aid.

Philippa Whipple QC and Matthew Donmall successfully represented the Lord Chancellor in his challenge to a “QvQ order” requiring HM Courts Service to fund a father’s legal representation in order to cross-examine a child whom he was said to have abused; and because the father could not, in the family judge’s view, afford the legal costs, so that judge ordered funding from public resources. In his lead judgment, the Master of the Rolls concluded that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was a comprehensive and detailed scheme for the funding of litigants in civil litigation, and that the court did not have the power to make the order in this case. He observed that “The court must respect the boundaries drawn by Parliament for public funding of legal representation”.

In addition, the Court of Appeal agreed that there would be no breach of the Article 6 and 8 rights of any of the parties to the underlying dispute. If the father, not himself being able to cross-examine the child, did not have a legal representative to do so, then there were other ways to ensure that rights were protected. In particular, the family judge could conduct the questioning, as was specifically anticipated in the judgment of Baroness Hale in Re W [2010] UKSC 12, and as recognised in the relevant practice direction under the Family Procedure Rules.