Time for courtroom change?

The Guardian recently reported on the issue of victims, or alleged victims, of domestic violence being open to cross-examination by the alleged perpetrator in the family court.

This horrendous anomaly means those who have often been subject to the most appalling psychological and physical trauma are at risk of being grilled in court by the very person they are trying to escape from.

This situation has already been largely stamped out in the criminal courts, with rules in place to ensure cross-questioning by an alleged abuser is not permitted where alternative arrangements are in place. But the family court’s delay in dealing with the issue has prompted calls for reform.

Legal aid has been cited as one issue here, as, thanks to government cuts, funding is no longer routinely available in family cases. Only those who can prove under the regulations they are a victim of domestic violence are eligible for public funding. But the granting of legal aid to a victim would not provide a buffer between the parties if there is a litigant in person on the other side of the dispute. In any case, the alleged perpetrator may not have (pre April 2013) qualified for legal aid anyway if their capital and income was over the prescribed limit.

The recent media attention given to this issue does seem to have prompted a response from the courts. A report has now been published by High Court judge Mr Justice Cobb on possible changes to court rules where domestic violence issues may be concerned.

These proposals have yet to be adopted, of course, but we can expect to see some practical adjustments made to prevent situations in which vulnerable parties have little option but to sit in a cramped court waiting room alongside an alleged perpetrator.

Common entrances to buildings, toilet facilities, vending machines, and so on, nonetheless carry the risk of encounters. The perpetrator – who may be attending at court quite legitimately – could also be subject to an existing non-molestation or restraining order. An unintended encounter, then, could put them at risk of accusations of harassment and result in their immediate arrest.

The proposed rules clearly place far greater requirements on the courts to protect victims of domestic abuse, with one proposal including a specific ban on permitting an unrepresented alleged abuser to cross-examine the alleged victim. There is also a clear expectation that the judge or magistrate should be prepared, where necessary and appropriate, to conduct the questioning of witnesses on behalf of other parties not permitted to question them directly.

The situation is going to be extremely difficult to resolve. While there is a legitimate need to protect victims from the court process being used as a means of perpetuating abuse, there is also a risk of the pendulum swinging back the other way, with the opposing party having little control over the way in which the case is conducted or the evidence challenged.

Despite everyone’s best intentions, a situation like that would provide little resolution for anyone.

Paul Hunt is a senior associate at Kirwans

@KirwansLaw  www.kirwanssolicitors.co.uk