I have been writing and talking about the need for a prohibition on cross examination in the family court since at least 2016 (see here and here). 2016 was the year that the Prison and Courts Bill contained almost identical provisions to those eventually passed in 2021. For various reasons it took several Bills and five years to pass the prohibition into law (via s65 of the Domestic Abuse Act 2021). There have been changes of government, pandemics, and once in a decade appeals since then and the blinking thing is still not in force. The commencement schedule still says vaguely (and as of today, inaccurately) ‘June 2022’, and yet no commencement order has been laid.
There are signs that the commencement of the provisions in s65 is drawing closer. In a meeting earlier this month for lawyers interested in performing the role of ‘qualified legal representative’ (the lawyers who get appointed by the court to ask questions on behalf of a litigant in person when the prohibition bites), we were told that the commencement date would be mid July and the precise date would be confirmed in a commencement order by the end of June. Here we are in the first days of July, and still nothing…
But what’s a few more days between friends?
We were also told at that meeting that the new provisions, whenever they finally do come into force, will only apply in the Family Court to newly issued cases. So, all those people with forthcoming fact finding hearings, or who are already engaged in proceedings where a fact finding hearing might be necessary – well, sorry, but the new rules aren’t going to help you.
This is quite an important point, and it is somewhat surprising that the first I heard of it was when I attended this meeting in mid June (I’ve been following closely and involved in various stages of the consultations around implementation). The fact that the same provisions in the civil courts (which have already commenced, by the way) have no such carve out in terms of application tells you that this is about expediency not principle. I suspect there aren’t enough lawyers signed up who are willing to do the task of asking the questions, and civil servants have belatedly realised there will be a logjam created on commencement unless they limit the numbers of advocates they need to find. So they are going to try and solve the problem by limiting the bite of the provisions to a smaller subset of family court cases. Good luck with that…
If justice in one case heard in 2022 requires the court to appoint a lawyer to ask questions on behalf of a litigant who doesn’t have a lawyer, in order to facilitate the best evidence of both parties and to avoid re-traumatisation, and in order to avoid the invidious and unsatisfactory situation where the judge has to try to ask the questions whilst also remaining independent – then it will be just as necessary in all such cases, regardless of the entirely arbitrary factor of the application issue date. The whole point of these long awaited provisions was that the existing options didn’t work, weren’t fair and were excruciating for all involved. Judges said in terms that the process was abusive and they would no longer play a part in it. There will indeed be a lot of cases where the prohibition bites – as the President of the Family Division recently confirmed to the Parliamentary Inquiry into the Children & Families Act 2014, the majority of the (many) private law children cases in the Family Court involve allegations of domestic abuse, but this was always obvious. It should not be a surprise.
Advocates are fed up of being compromised by being expected to ask questions on behalf of opposing parties where the judge is (rightly) too squeamish. I’ve done it, and I resolved some time ago that it is too ethically compromising to agree to do it again. I won’t be changing my position on that if asked to do it post-commencement for cases that were issued too soon to qualify. The solution is s65 and it should be implemented across the board as we all expected it to be.
Nor should it be a surprise that unless the scheme was properly remunerated the MoJ would struggle to find enough advocates willing to take the work on. In fact, looking back at one of my posts in early 2017, I was worried about the fees being inadequate even then. I have signed up, more out of perverse curiosity than anything else, because I’m invested in finding out how (if) this works. But I have ONLY signed up for courts very local to me because there is no allowance for travel expenses or time. The scheme is pretty poorly paid as it is, but there is no incentive at all to accept cases involving the additional burden of travel. Whether I will continue to do it will depend on how it works on the ground. I foresee that the expectations of the court and needs of the case may not match up neatly with the guidance or the fees.
Sadly, I predict that there are problems ahead and that, having waited half a decade for the solution to this problem, we are some way off from anything like a solution, even when the relevant Minister presses the big green ‘Go’ button on s65. I’ll be happy if I’m wrong, but I don’t see colleagues clamouring to put themselves on the list to undertake this complex and frankly unattractive work for a bit of a rubbish fee. The cab rank rule won’t apply to it, so we are at liberty to just say ‘Thanks, but no thanks’.
The issues by the way aren’t even just about fees. You’ll notice I said it was complex work. It is. This work will not be either easy or fun. And yet the eligibility criteria are, shall we say, somewhat fuzzy. Again, that may be about bums on seats. The question is not about the numbers of proverbial bums, it is also about ensuring the bums are attached to persons with appropriate skills, experience and training. Whether this is achieved or not remains to be seen.
A little part of me is hoping that sod’s law will mean that the minute I hit ‘publish’ on this post, the commencement order will pop up on legislation.gov.uk and miraculously it will commence the provisions across the board for all cases. If that is the case it will be one less thing to worry about, but we’re still probably in for a bumpy ride. If it doesn’t we will potentially still have cases being heard where there are inadequate protections for the cross examination of victims of abuse almost a decade after the problem first really came to public attention. (Dare I say it, there will still be inadequate protection even when s65 is fully in force because having an advocate ask questions on your behalf of one witness is nothing like full advice and representation, but that’s a whole different post and a whole different level of wishful thinking).