In a telling example of the severe impact that funding cuts are having on the family justice system, a senior judge has asked the Legal Aid Agency (LAA) to ‘look again’ at a case in which a father had been refused financial assistance in defending himself against an allegation of rape.
The father had applied for contact with his three-year-old child but the mother had responded with an accusation that he had raped her. The allegation was not the subject of criminal proceedings but the issue as to whether it was true or false was of central importance to the child’s future.
The mother had been granted legal aid so that she would be represented by counsel and solicitors at a forthcoming fact finding hearing. The father had been refused the same assistance. However, in a strongly worded decision, Judge Stephen Wildblood QC urged the LAA to reconsider the father’s position ‘as a matter of urgency’.
The judge noted that, if the issues were before a criminal court, the father would be prohibited from cross-examining the mother in person by Section 34 of the Youth Justice and Criminal Evidence Act 1999. In the absence of counsel to represent him, it was very difficult to envisage that questioning of the mother by the judge on the father’s behalf could be achieved in a way that he would view as adequate.
The accusation of rape was one of a number of serious allegations made against the father by the mother. It was vital that her claims be fully and fairly tested in cross-examination and that the father should have the benefit of professional advice. The issues raised were of some complexity and it was ‘highly unlikely’ that legal representation for the father could be found on a pro bono basis.