A woman trying to protect her 10-year-old daughter from an abusive and controlling ex-husband who she accused of raping her was forced to fight her case with no lawyer.
The case, heard in Middlesbrough family court, was to decide what contact the father could have with his daughter.
District judge Simon Read expressed his disbelief that, despite being on state benefits and not able to afford a lawyer, the mother did not qualify for legal aid. The father was also unrepresented, leading to a situation that Judge Read said created a “very strong likelihood” of a miscarriage of justice.
The case represents one of the starkest examples so far of the impact of people being forced to appear in court without a lawyer. BuzzFeed News has revealed how government cuts to legal aid have driven a surge in the number of people seeking advice on how to represent themselves – a situation described by the chair of the Bar Council as "bordering on disgraceful".
Family courts, such as in the Middlesbrough case, are feeling the effects particularly strongly. More than two-thirds of people in family court hearings in front of magistrates have no lawyer, according to a survey by the Magistrates Association for BuzzFeed News – a 65% increase since 2014 when the legal aid cuts were introduced.
The judgment in the case, which was heard last month, has been published online. The judge noted: “Neither parent could afford a lawyer, and neither was eligible for Legal Aid. I found this surprising in the mother's case in particular, given that I was told that she was dependent entirely on state benefits and yet failed the means test, despite the nature of the case.”
The judge said he had “no hesitation” in finding allegations of assault and coercion proved. These included an unprovoked blow to his teenage stepson on the head and assault and abuse of the mother, known in the case as RY. But he was unable to prove the rape allegations, or abuse of the younger children, because the mother had felt unable to continue being questioned.
Judge Read said the evidence led him “to conclude that the father did exert control and coercion over the family, which he would exercise violently and physically at times, leading them (or at least the older boys and RY) to be in fear of him at times, especially and increasingly towards the end of the marriage.”
Many of the allegations were related to abuse while on a holiday taken “for the children’s sake” weeks after the couple had split up. These included the mother being sexually and physically assaulted in the hotel pool, raped in the hotel room, and assaulted on the hotel’s balcony – all with the children nearby.
After having her ex-husband’s questions put to her by the judge, the mother said she was unable to give any more evidence. This was just as the questioning began to relate to sexual assaults. The judge said that because the allegations could not be tested under oath they could not be proven without clear corroboration from elsewhere.
Describing the moment her testimony stopped, the judge wrote: “She became upset and left the courtroom unexpectedly half way through giving her answer to a question … when she began to relate how the father kept touching her inappropriately and making advances to her whilst on the holiday flight and then later on the holiday.
“... It was noticeable that the mother had left the witness box just before my questioning of her was due to reach the allegations of a sexual nature … On returning to court, I asked the mother if she would resume giving evidence. She declined, saying she could not continue, and asked me to form a judgment on what I'd heard from her so far, also stating that if she wanted a battle she'd not have withdrawn her allegations on the criminal investigations, and thought that this case was just about contact.”
Both parents had to prepare their own questions for cross-examination and produced vast, disorganised bundles of paperwork that the judge said were impossible to use. The case had to be adjourned twice because the police failed to disclose interview notes relating to the allegations. The mother had decided she wanted no further police action in a criminal case against the father but brought a case in the family court to protect their daughter from him.
Despite her vulnerability, the mother had to produce a list of questions to be asked of her ex-husband by the judge, rather than have him properly cross-examined by a lawyer. The judge pointed out that “No English or Welsh criminal court would proceed as this court had to, in the absence of representation for parties dealing with such grave allegations.”
Clearly affected by the way that a lack of lawyers had hampered the fairness of the hearing – and its traumatic impact on the mother, the judge writes: “There is always the fear in the mind of the Court that the questioning of an alleged victim about their abuse merely prolongs that abuse by other means. Given my findings in this case, limited though they are to only the first few allegations, I think that fear is borne out here.
“I am also worried that the father will see his stance of not making any admissions to have resulted in him 'winning', in some sense, because only a few of the allegations were ever properly tested.”
The judge said his questions to the father lacked the “finesse, insight or skill” of an advocate who had a chance to prepare a case properly. On his questioning of the mother, the judge regretted that it was lengthy and “far from ideal,” concluding: “There is a very strong likelihood that the outcome of the fact finding would have been different, and most probably a truer reflection of what really happened, had the parents been represented. It would surely have concluded sooner, more fairly, and at far less expense to the public purse than ultimately was the case, with two wasted days at Court. It may also have been less painful for the participants.”
The court must now decide to what extent the father is supervised in contact with his daughter.