Lorna Meyer QC and Kirsty Gallacher acted on behalf of the Respondent Mother (instructed by LDJ solicitors) in the Court of Appeal case of Re K and H (Children) [2015] EWCA Civ 543.

The Lord Chancellor appealed against the order of His Honour Judge Bellamy directing that the costs of an advocate appointed for the purposes of cross-examination of the child witness were to be borne by Her Majesty’s Court and Tribunal Service (‘HMCTS’).

The proceedings concern a father who is unrepresented in private law proceedings and his application for a child arrangement order in respect of his two children.  The father falls outside the scope of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’).

The appeal was heard by the Master of the Rolls, Lady Justice Black and Lord Justice McFarlane, with the Master of the Rolls giving the lead judgment.  The Lord Chancellor, the Respondent Mother and the Intervener (representing the Association of Lawyers for Children and Coram Children’s Legal Centre), were represented by lead and junior counsel at the Appeal hearing.

The Court of Appeal allowed the appeal and disagreed with what the President said at para 79 of his judgment in Q v Q [2014] EWFC 31, [2015] 1 WLR 2040, accordingly that the judge did not have the power to make the order for HMCTS to fund the costs of an advocate.

The Court of Appeal further considered whether questioning by the Judge would be compatible with the Convention.  The Court of Appeal acknowledged that there would be cases where it would be inappropriate for the questioning to be undertaken by the judge or clerk and that in order to avoid the risk of a breach of the Convention, consideration should be given to the enactment of a statutory provision for (i) the appointment of a legal representative to conduct the cross-examination and (ii) the payment out of central funds of such sums as appear to be reasonably necessary to cover the cost of the legal representative, such a provision in civil proceedings analogous to section 38(4) of the Youth Justice and Criminal Evidence Act 1999 and section 19(3)(e) of the Prosecution of Offenders Act 1985.

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