In three family law cases recently, Judges have made it clear that justice may not be capable of being achieved if a party does not have access to ‘public funding.’ This is important because since April 2013 only parties who are parents in public law proceedings, or victims in domestic violence cases, or applicants in abduction proceedings are automatically entitled to family law legal aid. It is of course part of the Court’s so-called ‘Over-riding objective’ to ensure that parties are dealt with on an equal footing and that justice is dispensed fairly. The ‘inequality of arms’ scenario is most likely to arise when serious allegations of fact are levelled at but denied by an unrepresented perpetrator. However it also arises where serious consequences may align themselves to a party, simply because he or she is not represented. This is what happened in a case called R v R [2014] EWFC 48 when Mr R found himself unable to go to his house, because he was not allowed to enter his street, even though the Court had refused to make an order excluding him from his house!
In Q v Q [2014] EWFC 7 the President of the Family Division, did not see how it could be fair for a victim to be cross examined directly by the perpetrator, but he was equally clear that she should be questioned. Here he was ensuring that justice was properly dispensed to the victim as well as the perpetrator; ‘where the court is of the view that such expenditure is necessary to ensure that the proceedings are just and fair, why should HMCTS not incur the cost if the LAA will not?’
A classic example of the need to ask this question arose in the case of K v H [2015] EWFC 1. In that case the mother’s older daughter Y, made an allegation, to her teacher, that she had been sexually abused by the father. The father denied that allegation, but before the court could consider the father’s future contact with K and H it was imperative to establish whether Y’s allegation was true.
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