“I have found it extremely disturbing to have been required to watch this woman cross examined about a period of her life that has been so obviously unhappy and by a man who was the direct cause of her unhappiness”.
Those were the words of Hayden J in Re A [2017] EWHC 1195 (Fam). It was far from being the first time that a senior member of the judiciary had highlighted the issue. Some sixteen years after Wood J invited the legislature to give “urgent attention”[1] to the creation of a statutory provision analogous to that applicable in the criminal courts, and seven years after an attempt to secure funding for the same via HMCTS[2], section 65 of the Domestic Abuse Act 2021 has finally entered into force for proceedings started on or after 21st July 2022[3].
Provisions of the Domestic Abuse Act 2021
The Domestic Abuse Act 2021 (“the DAA 21”) inserts into part IVB of the Matrimonial and Family Proceedings Act 1984 (“the MFPA 84”) a series of provisions prohibiting the cross-examination of witnesses by parties in person in family proceedings where domestic abuse features. The DDA 21 needs to be read alongside the Prohibition of Cross-Examination in Person (Civil and Family Proceedings) Regulations 2022 (“the regulations”).
The circumstances in which cross-examination will be prohibited are wide ranging, and so too is the definition of domestic abuse, which is set out in section 1 of DAA 21 as including all types of physical, sexual, economic, psychological or emotional abuse, and all types of violent, threatening, coercive or controlling behaviour whether a single incident or a course of conduct.
Section 31R MFPA 84 states that where a party to proceedings acts in person and has a conviction, caution or has been charged with a specified offence, they may not cross-examine the victim or alleged victim of that offence. Similarly, the victim or alleged victim acting in person may not cross-examine any witness who has been convicted of, cautioned for or charged with a specified offence. Section 31S details corresponding provisions where on notice protective injunctions (including occupation and non-molestation orders, restraining orders, sexual harm prevention orders, etc) have been made. Finally, section 31T addresses the situation where there is evidence of domestic abuse falling short of a conviction, caution, charge or injunction.
The regulations detail the nature of the offences (for the purposes of s 31R) or of the evidence (for the purposes of s 31T) that is required to fall within the prohibition. As with other elements of the DDA 21, the provisions are wide ranging and include offences against the person, offences against children, human trafficking, FGM, forced marriage, slavery, sexual offences, dishonesty and property offences, public order offences, stalking, controlling and coercive behaviour, disclosing sexual photographs with the intent to cause distress and breaches of injunctions. The types of evidence which may be adduced to satisfy s 31T, include undertakings in Family Law Act proceedings, a fact finding judgment, an expert report for Court proceedings in which the witness was assessed as a victim of abuse, as well as letters or reports from health professionals, domestic violence advisors, sexual violence advisors, any UK based organisation providing support services to victims of abuse, social workers or housing officers.
Where the above do not apply and, as such, there is no automatic statutory prohibition on cross-examination, the Family Court nonetheless has a discretion to make a direction pursuant to section 31U, where either the “quality condition” or the “significant distress condition” are met and it would not be contrary to the interests of justice to give the direction. Thus where either the quality of the evidence given by the witness is likely to be diminished if the cross-examination is conducted by the party in person and would be likely to be improved if a direction prohibiting the cross-examination were given or the cross-examination of the witness would be likely to cause significant distress and that distress is likely to be more significant than if they were cross-examined other than by the party in person, then the Court may (either of its own motion or on an application) prohibit the cross-examination by a party acting in person. A non-exhaustive list of factors to be considered when determining whether the quality condition or significant distress condition are met are set out at s 31U(5):
(a) any views expressed by the witness as to whether or not the witness is content to be cross-examined by the party in person;
(b) any views expressed by the party as to whether or not the party is content to cross-examine the witness in person;
(c) the nature of the questions likely to be asked, having regard to the issues in the proceedings;
(d) any behaviour by the party in relation to the witness in respect of which the court is aware that a finding of fact has been made in the proceedings or in any other proceedings;
(e) any behaviour by the witness in relation to the party in respect of which the court is aware that a finding of fact has been made in the proceedings or in any other proceedings;
(f) any behaviour by the party at any stage of the proceedings, both generally and in relation to the witness;
(g) any behaviour by the witness at any stage of the proceedings, both generally and in relation to the party;
(h) any relationship (of whatever nature) between the witness and the party.
(6) Any reference in this section to the quality of a witness’s evidence is to its quality in terms of completeness, coherence and accuracy.
(7) For this purpose “coherence” refers to a witness’s ability in giving evidence to give answers which—
(a) address the questions put to the witness, and
(b) can be understood, both individually and collectively.
Once a direction has been made prohibiting a litigant in person from cross-examining a witness, the Court must go on to consider the steps that need to be taken to enable the evidence to be adduced. Where there is a “satisfactory alternative means” of either obtaining the witness’ evidence without the cross-examination or of enabling the witness to be cross-examined without the prohibited party doing so, then the Court must adopt that alternative means. In view of the repeated references within the authorities to the wholly unsatisfactory nature of the position prior to the DDA 21, the nature of such alternative means of enabling a witness to be cross-examined without the prohibited party doing so themselves, that a Court would be likely to regard as “satisfactory” are unclear and perhaps will become the exception rather than the norm. Cross-examination by the Judge is expressly stated not to be a satisfactory alternative means within the Family Procedure Rules. The President, in his recent “(short) view” (July 2022), observed that the provisions of Part 4B MFPA 84 are likely to be widely taken up.
In the absence of a satisfactory alternative, the Court must invite the party prohibited from cross-examining to obtain legal representation within a specified period of time (s 31W(3)). If no such representative is instructed, the Court must then go on to consider whether it is necessary in the interests of justice for the witness to be cross-examined by a qualified legal representative appointed by the Court to represent the interests of the party. If so, the Court must then choose and appoint a legal representative to cross-examine the witness in the interests of the party who has been prohibited from doing so as a litigant in person.
The legal representative appointed pursuant to s 31W (6) will be an individual who is authorised to exercise rights of audience in the Family Courts pursuant to the Legal Services Act 2007. They must have a current practicing certificate. They must also have undertaken (or have made a commitment to attend within 6 months) advocacy and vulnerable witness training. It is anticipated that a mechanism will be developed for qualified practitioners to register with HMCTS, and that local Court centres will then maintain a list. Given the provisions of s31R (1) and (2), it seems quite likely that, in private law cases where both parents act in person, the Court will need to consider appointing more than one qualified legal representative.
Procedural and Statutory Guidance
Part 4B MFPA 84 must be read alongside Practice Direction 3AB. For practitioners representing parties to the proceedings it seems likely that Part 4B will most often be encountered in private children proceedings where one or more of the parents are unrepresented. Forms EX740 and EX741 may be used to apply for a party to be prohibited from cross-examining, although an application for a direction under s 31U may also be made orally. It is incumbent on the Court and all parties to give consideration to the issue at an early stage of the proceedings. Clearly this will be necessary to avoid delay, particularly given that a period of time will need to be given to any prohibited party to obtain representation before the Court will be in a position to appoint a qualified legal representative.
The Lord Chancellor has issued statutory guidance on the role of the qualified legal representative appointed by the Court which offers some helpful practical guidance as to the nature of the role. It is of note that:
- the central purpose of the role is to ensure that the fairness of the proceedings are maintained. The qualified legal representative must put the essence of the prohibited party’s case and must cross-examine on those parts of the witness’ case that may have a significant impact on the outcome of the proceedings. They do not have a free-ranging remit to conduct the trial on behalf of the prohibited party and nor do they represent them.
- the qualified legal representative is accountable to the Court. Although they are appointed to cross-examine in the interests of the prohibited party, they are not responsible to that party. This must be made clear to the prohibited party by both the Court and the qualified legal representative. In particular, it will be necessary for the prohibited party to understand the nature of the role, that the qualified legal representative cannot give advice or represent the party, that they cannot help prepare documents or assist in complying with directions, and that they cannot promise the confidentiality that usually attaches to client-lawyer relationships.
- Whilst the prohibited party may suggest questions to the qualified legal representative, those questions should be put only if they relate to the essence of the prohibited party’s case and are on those parts of the witness’ case which may have a significant impact on the outcome of the proceedings. Court-appointed representatives do not take instructions from the prohibited party. Where there are capacity issues, or a lack of cooperation, the qualified legal representative will draw this to the attention of the Court and will conduct the cross-examination on the issues that are apparent from the papers or as directed by the Court.
- The qualified legal representative will need to meet with the prohibited party in order to understand the essence of their case. If further information is required to discharge their responsibilities, the qualified legal representative should request such information from the Court. The representative may also properly seek guidance from the Judge as to the apparent issues in the case. Statutory guidance recommends the preparation of a brief position statement to identify the issues that will be the focus of cross-examination.
Court appointed qualified legal representatives will be paid from central funds in accordance with the Prohibition of Cross-Examination in Person (Fees of Court-Appointed Qualified Legal Representatives) Regulations 2022.
And what of proceedings issued prior to 21st July 2022? It is the experience of the author that the vast majority of Judges have, for some years now, been taking steps to ensure that the situation described by Hayden J in Re A are avoided wherever it is possible to do so. However, it is clear that there are ongoing examples of a very different approach. In Re A (Domestic Abuse: Incorrect Principles Applied) SD19P01120 a Circuit Judge identified that a District Judge had failed to identify the mother as a vulnerable witness, had failed to provide special measures despite the fact that such measures would have caused no prejudice to the father, and had allowed the father as a litigant in person and the alleged abuser to cross-examine the mother directly. Clearly it will be imperative in all cases where domestic abuse is identified or alleged that advocates continue to draw the Court’s attention to the relevant statutory provisions and urge the Courts to give careful thought to special measures and ground rules at an early stage of the proceedings.
[1] H v L & R [2006] EWHC 3099 (Fam)
[2] Re K and H [2015] EWCA Civ 543
[3] Domestic Abuse Act 2021 (Commencement No 5 and Transitional Provision) Regulations 2022
