Causing avoidable harm: cross-examination and the litigant in person

Family practitioners are experiencing an inconsistent approach to the cross-examination process where a litigant in person is involved, says Kara Swift

Cross-examination is an unavoidable feature of hearing the evidence, whether it is at a fact finding hearing or a final hearing.

This is how the inquisitorial system works. But there’s no reason why this couldn’t be made safe and suitable for all parties involved.

Mr Justice Hayden expressed his view of the system in Re A (a minor) (fact finding; unrepresented party) [2017] EWHC 1195 (Fam). 

“It is a stain on the reputation of our family justice system that a judge can still not prevent a victim being cross-examined by an alleged perpetrator… the process is inherently and profoundly unfair. I would go further it is, in itself, abusive,” he said. 

“For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.” 

Inconsistent approach 

With the limited tools available to the judiciary, legal representatives and the parties, the steps which are being adopted to improve the process of cross-examination when a litigant in person (LiP) is involved are varied across the country with possibly wide-reaching impacts: 

In accordance with Practice Direction 12J – Child Arrangements & Contact Orders: Domestic Abuse and paragraph 28, a party can be directed to identify the questions they wish to ask, and the judge should be prepared to conduct the questioning of the witnesses on behalf of that party. This has in practice borne out in a number of ways. 

In some circumstances it has been directed that the LiP should not only send to the judge the questions they wish to ask in advance of the hearing but also serve them on the other party.

While legal advisers of course have to be aware of their inability to ‘coach’ their clients, in cases where the other party (the victim) is represented, having sight of the LiP’s cross examination questions in advance of the hearing can benefit their (and their representative’s) preparation.

In other cases it has been directed that the LiP produce to the judge and the other party the questions they wish to ask on the morning of the hearing.

This would arguably limit the amount of time the other party has to prepare for cross-examination and again, if they were represented, would be produced at the same time as the other party’s representative’s note setting out their case. 

This goes some way to levelling the playing field with the LiP having sight of the document prepared for the judge, but this still does not provide for equality when the LiP will not have the same understanding of the questions that will be asked of them in cross-examination unlike the other party who has had sight of theirs. 

In any situation when the LiP put forward their questions and/or the judge/court clerk has chosen to question the other party themselves there is the intrinsic difficulty of how far a judge can assist the LiP.

The judge, to satisfy themselves of the evidence, has to ensure that the necessary questions are asked of the other party. 

There is however the balancing act of ensuring this and not straying into the realms of conducting the LiP’s advocacy. 

Without the benefit of legal advice, a LiP is unlikely to put forward adequate, appropriate and necessary questions but how far can or should a judge go to redress this? 

Unquantified reform 

In March last year (2018) the government consulted on proposals for the draft Domestic Abuse Bill. The objectives explored were:

• Promote awareness – to put domestic abuse at the top of everyone’s agenda, and raise public and professional awareness;
• Protect and support – to enhance the safety of victims and the support that they receive;
• Transform the justice process – to prioritise victim safety in the criminal and family courts, and review the perpetrator journey from identification to rehabilitation;
• Improve performance – to drive consistency and better performance in the response to domestic abuse across all local areas, agencies and sectors.

The measures that were identified as requiring primary legislation to implement and which will be taken forward in the draft Domestic Abuse Bill are:

1. Provide for a statutory definition of domestic abuse;
2. Establish the office of Domestic Abuse Commissioner and set out the commissioner’s functions and powers;
3. Provide for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order;
4. Prohibit perpetrators of domestic and other forms of abuse from cross-examining their victims in person in the family courts (and prevent victims from having to cross-examine their abusers) and give the court discretion to prevent cross-examination in person where it would diminish the quality of the witness’s evidence or cause the witness significant distress;
5. Create a statutory presumption that complainants of an offence involving behaviour that amounts to domestic abuse are eligible for special measures in the criminal courts;
6. Enable high-risk domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody;
7. Place the guidance supporting the Domestic Violence Disclosure Scheme on a statutory footing;
8. Ensure that, where a local authority, for reasons connected with domestic abuse, grants a new secure tenancy to a social tenant who had or has a secure lifetime or assured tenancy (other than an assured shorthold tenancy), this must be a secure lifetime tenancy;
9. Extend the extra-territorial jurisdiction of the criminal courts in England and Wales to further violent and sexual offences. 

Part 4 of the draft Bill provides for the prohibition of cross-examination in certain circumstances and give judges the power to appoint legal representatives funded from central funds to undertake cross-examination on behalf of the prohibited party. 

The associated documents with the draft Bill state that the Ministry of Justice estimates the indicative cost of funding the legal representatives to cross-examine on behalf of perpetrators of domestic abuse is estimated to be up to approximately £8m per annum. 

This is based on legal representatives being appointed in approximately 11,000 family proceedings annually (an estimate based on potential volumes, using family court statistics and qualitative research from judges not including the Family Division of the High Court) and the current final hearing legal aid fee paid to legal representatives in the relevant family proceedings.

The cost to set up to the system of sourcing and appointing legal representatives and the cost of administration has not yet been quantified. 

The additional cost of funding legal representative to prevent victims having to cross-examine the alleged abusers has not been quantified.

The associated documents do however state that £900,000 will be provided to fund organisations based in a number of family courts to provide specially trained staff who will offer dedicated emotional and practical support to domestic abuse victims before, during and after hearings. 

This may in part explain why some organisations and stakeholders are saying that the draft Bill does not go far enough to resolve the issues facing domestic violence victims in the family justice system. 

The flip side

While the focus of the reform has, rightly, been about providing a more suitable process for victims of domestic abuse to give evidence when their ex-partner is a LiP, it cannot be ignored that the varying procedures adopted in the meantime may have also prejudiced LiPs who are alleged perpetrators.

Hopefully, the provision of legal representation under the draft Bill may go some way to assist with this but that is still only envisaged in situations where the LiP is being prevented from cross-examining the other party.

This does not assist those LiPs who are still allowed to cross-examine the other party with protections in place.

The court needs to be mindful of the need to strike the balance as set out in paragraphs 19(j) and 19(l) of Practice Direction 12J, to enable that the hearing is fair to all parties. 

The government has at least now got the issue on its agenda but how the draft Bill plays out in practice after Royal Assent is yet to be seen.

Kara Swift is an associate solicitor at Family Law in Partnership flip.co.uk