A Revolutionary Judgment to Protect An Adult Witness of Child Abuse

H v (1) L (2) R (2006)
[2006] EWHC 3099 (Fam)

LTL 15/12/2006 : Times, February 19, 2007
Fam Div (Roderick Wood J)7/12/2006

CIVIL PROCEDURE - FAMILY LAW - HUMAN RIGHTS
ADVOCATE TO THE COURT : ATTORNEY GENERAL : CHILD SEXUAL ABUSE : CROSS-EXAMINATION : FAMILY DIVISION : LITIGANTS IN PERSON : RIGHT TO FAIR TRIAL : FATHER SEEKING PARENTAL RESPONSIBILITY AND CONTACT : ADULT STEPDAUGHTER ALLEGING PAST SEXUAL ABUSE : ADVOCATE TO THE COURT TO CONDUCT CROSS-EXAMINATION : YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999 : Art.6 EUROPEAN CONVENTION ON HUMAN RIGHTS

As an exceptional measure only, the Attorney General instructed an advocate to cross-examine a vulnerable witness who alleged past sexual abuse by a litigant in person step-father who, in the instant application, sought parental responsibility and contact with his other daughter. The court, however, emphasised the urgent need for a new statutory provision in private law proceedings where a serious allegation of sexual abuse had been raised and permitting the court to provide such an advocate in the interests of justice, fairness and human rights.

In proceedings where a litigant in person father (H) applied for parental responsibility and contact with his daughter (R), it fell to be determined who should cross-examine a vulnerable adult witness, H's stepdaughter (B). She had alleged that H had sexually abused her when she was a herself a child. R and B were half-sisters. Although adult, 20 years at time of trial, B was a borderline anorexic and a real suicide risk. In the context of H's application, the court held a fact-finding hearing to determine the truthfulness of B's allegations.

Counsel:For the applicant: In person
For the first respondent:Sophia Cannon
For the second respondent: John Church
Advocate to the court: Deiniol Cellan-Jones

Advocate to the court: Treasury Solicitor
For the first respondent: Howarth Scott Solicitors (Bexleyheath)
For the second respondent: Ewings & Co (Penge)

HELD:
(1) As a result of the judge's urgent request and invitation, in the instant case, the Attorney General exceptionally agreed to provide an advocate to the court to cross-examine B on behalf of H. It had to be emphasised, however, that the Attorney General should not be a regular "port of call" for the provision of such assistance even where, as here, where all other available options had been considered and eliminated. These options included iniviting pro bono organisations, including the Family Law Bar Association, the Free Representation Unit, and statuory bodies including CAFCASS Legal amongst others.

(2) (Obiter) In cases such as the instant one, evidence from child witnesses could be taken by interview rather than in court, but it was not the practice to protect adults from being cross-examined, Re D (2002) 1 FLR 723 considered. In criminal cases, the statutory framework set out in the Youth Justice Criminal Evidence Act 1999 protected witnesses from cross-examination by accused litigants in person, but in order to protect the accused's right to a fair trial under the European Convention on Human Rights Art.6, that included the provision of court-appointed advocates to conduct cross-examination in the interests of the accused. Therefore the judge surmised that there was an urgent need for a new statutory provision analogous to that provided in the 1999 Act to be introduced in private law proceedings. Judgment accordingly.

" This is a case of major importance, brought home to me by the number of requests for the judgment from litigants in person (the alleged perpetrators) and solicitors of victims. In requests from London to Manchester, it became clear that the interests of justice were not being served. Some cases have collapsed when the vulnerable adult could not face to relive the alleged abuse or the abuser leading to a fear on behalf of child protection professionals of the Huntley effect. This is where an abuser who has been detected or bought to justice, when upon further inquiry, is revealed to have a catalogue of victims, lower grade sexual offences and misconduct escalating to serious sexual assault and murder.

Of note, the judge could not see why there was a distinction between criminal cases and civil family cases especially, in this instant case where another child's welfare is at stake"