Intermediaries and judicial education needed in family courts

When Sir James Munby called for a ban on cross-examination of alleged victims by their alleged attackers, he spoke for the whole of the beleaguered family justice system – and society as a whole.

Devastating legal aid cuts have led to domestic abusers representing themselves. Emergency research on banning this ‘torturous’ practice is now, finally, to be commissioned by the Ministry of Justice, but for some it has come too late. Just one of the unintended consequences lawyers warned of prior to the implementation of LASPO.

Cross-examination of victims by their attackers in criminal proceedings is illegal under the Youth, Justice, Criminal and Evidence Act (YJCEA) 1999, but no statutory equivalent exists in family law. Family judges do have the power to stop such questioning but some have failed to use it. In the absence of primary legislation, David Burrows, a solicitor advocate at Heaney Watson, has argued that the common law and inherent jurisdiction could be adapted to the family court.

In Re W (2010), Lady Hale promoted the flexibility of the family court, stating that it was ‘not limited by the usual courtroom procedures’, adding that ‘there are things that the court can do but they are not things that it is used to doing at present’. She also suggested putting the required questions through an intermediary, currently provided for as a ‘special measure’ under section 29 YJCEA 1999.

The MoJ does operate a registered intermediary scheme for vulnerable witnesses in criminal cases but not in family proceedings unless there is a direct link to the case in which the witness is involved. Cost has always proved a stumbling block.

In 2015 the Family Procedure Rule Committee produced draft rules for children and vulnerable persons participating in family proceedings, which established when an intermediary could provide assistance to a party or witness. The rules are yet to be implemented by the MoJ, however, because the project wasn’t cost neutral.

Judicial understanding

Munby P is also considering the review of practice direction 12J undertaken by Mr Justice Cobb. Introduced in April 2014, the direction requires judges to consider various issues where allegations of domestic violence are raised in child contact proceedings.

Helen Greenfield, an associate at Family Law in Partnership, said there has been a ‘lack of understanding of judges regarding domestic abuse, its various guises and how it continues even after separation’, adding, ‘you get the impression that many judges have a complete lack of understanding of the “Helen Archer” coercive control type abuse which often lacks the immediate gasp factor and has more of a slow drip effect, but is nevertheless as devastating’.

‘Such abuse continues even after the parties cease living under the same roof,’ she told Solicitors Journal, ‘and the lack of proper training and education about such abuse and its effects on victims leads judges to overlook the need to apply PD12J in many relevant cases.’

Mandip Ghai, senior legal officer at Rights of Women, said ‘stricter adherence to the direction would improve survivors’ experiences. ‘PD12J requires judges to be prepared where appropriate to conduct questioning on behalf of parties,’ she said, ‘yet the number of women who tell us that this option was not considered in their case and that they were cross-examined by their abuser is surprisingly high.’

A survey carried out by charity RoW in 2012 revealed that only one in ten lawyers said judges complied fully with the direction when addressing allegations of domestic violence in child contact proceedings; three-quarters (57 out of 77) reported that judges ‘partially’ comply.

Women’s accounts indicated that opportunities to consider histories of violence through fact findings hearings were often missed, a point echoed by solicitors and barristers. The application of PD12J is considered to ‘vary extremely’ between courts and individual judges.

Road ahead

The outcome of the MoJ’s review will hopefully bring an end to domestic abuse victims facing cross-examination by their attacker and enable them to give their best evidence to the court.

The ministry has underspent on civil legal aid. It should invest funds in providing intermediaries and other ‘special measures’ for vulnerable witnesses – and also their abusers. Moreover, judicial awareness and monitoring of any such measures – civil or criminal – is imperative to ensure victims are given the protection they need.

Although primary legislation may not be necessary, the Lord Chancellor should not continue to rely on the ‘judge’s inherent jurisdiction and a good following wind for the logistics’.

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress