Cross-examination of vulnerable persons in family law proceedings

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1 48 January [2019] Fam Law Cross-examination of vulnerable persons in family law proceedings Katherine Res Pritchard, Senior associate at Vardags Kate Williams, Trainee solicitor at Vardags Katherine Res Pritchard is a senior associate at Vardags specialising in children cases, in particular those with an international element. Her expertise covers all cross-border disputes involving children, with a focus on international relocation cases. Katherine also advises on domestic disputes involving children, including advising victims of domestic abuse. Kate Williams is a trainee solicitor at Vardags and is currently assisting on children matters, both domestic and international. 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. This may not have been the worst or most extreme example but it only serves to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. 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. Hayden J, Re A (A Minor) (fact finding; unrepresented party) [2017] EWHC 1195 (Fam) The Family Justice System prides itself on its principles and its central focus which is protecting the welfare of those who find themselves involved with the system, particularly those who are vulnerable. Measures are put in place to safeguard these individuals during the process but judges and legal professionals say these do not go far enough. In family law proceedings, it remains a very real possibility that a victim may face cross-examination from the alleged perpetrator of the abuse. Cuts to legal aid and the rise in litigants in person mean that this situation is occurring more frequently. In July 2017, Women s Aid and Cafcass released their joint research into domestic abuse allegations in child contact cases which revealed that 62% of the cases reviewed involved allegations of domestic abuse, and that 24% of those surveyed had been cross-examined by the alleged perpetrator. This current situation clearly affects not only the vulnerable victim, but also the children involved in the proceedings. Further reports into the issue have been published by Women s Aid and the Ministry of Justice. Despite these worrying statistics and widespread reporting on this pressing issue, the law remains unrevised and subsequently, not fit for purpose. The Family Justice System is severely lagging behind its criminal counterpart in this respect, whose special measures for protecting vulnerable witnesses are enshrined in statute. Family judges are often frustrated by their inability to do anything about this gap in the court s protective powers; their hands are tied and they can only do what the law permits them. This article will examine the current legal framework in respect of vulnerable witnesses in family law proceedings and how this does not afford the same protections as are seen in criminal proceedings. It will then go on to examine recent case law which highlights how this prominent issue remains very much a live one and how judges have sought to overcome it.

2 January [2019] Fam Law 49 The current legal framework The statutory starting point is s 31G(6) of the Matrimonial and Family Proceedings Act 1984, which states as follows: (6) Where in any proceedings in the family court it appears to the court that a party to the proceedings, who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to- (a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and (b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper. Lord Dyson MR explained the position in the case of Re K and H (Private Law: Public Funding) [2015] EWCA Civ 543, [2016] 1 FLR 754, as follows: [MFPA 1984 s 31G (6)] enables the court to put questions to a witness on behalf of a party in the absence of legal representation, or to take steps itself to cause those questions to be put to enable effective examination of the witness. However, the issue of the court itself putting questions to the witness can itself be problematic, as can be evidenced in the recent case of PSvBP[2018] EWHC 1987 (Fam) (27 July 2018), which will be examined in detail below. In addition, whilst the statutory provision allows the court to put questions to a witness, the provision that allows the court to cause the question to be put to the witness lacks both explanation and specific provision for how this is to be effected. The next point of reference is of course Practice Direction 12J of the Family Procedure Rules, which deals with Child Arrangements and Contact Orders: Domestic Violence and Harm. Of particular relevance are the provisions relating to the matters that a court is to consider when making case-management directions prior to a fact-finding hearing. It is of course at the fact-finding that the alleged abuser, who is unrepresented, is to cross-examine the alleged victim. The relevant provisions are as follows: Paragraph 19 (j): what evidence the alleged victim of domestic abuse is able to give and what support the alleged victim may require at the fact-finding in order to give that evidence; Paragraph 19 (l): what support the alleged perpetrator may need in order to have a reasonable opportunity to challenge that evidence; Paragraph 28 then deals with the hearing itself and states as follows: While ensuring that the allegations are properly put and responded to, the fact-finding hearing or other hearing can be an inquisitorial (or investigative) process, which at all times must protect the interests of all involved. At the fact-finding hearing Each party can be asked to identify what questions they wish to ask of the other party, and to set out or confirm in sworn evidence their version of the disputed key facts. The judge or lay justices should be prepared where necessary and appropriate to conduct the questioning of the witnesses on behalf of the parties, focusing on the key issues in the case. The provision in the Matrimonial and Family Proceedings Act 1984 ( MFPA 1984 ) providing for the judge to question the witnesses is essentially replicated, although as set out above, issues as the efficacy or even appropriateness of this having regard to recent case law remain. This is in stark contrast to how this issue is dealt with when it arises in a criminal matter.

3 50 January [2019] Fam Law Youth Justice and Criminal Evidence Act 1999 In criminal proceedings, a statutory balance is struck between recognising an accused s right to cross-examine a witness, and the protection of potentially vulnerable witnesses. An automatic bar to cross-examination by a litigant in person does not exist, however protection for vulnerable witnesses is provided. Section 34 of the Youth Justice and Criminal Evidence 1999 ( YJCEA 1999 ) prohibits an alleged perpetrator of a sexual offence from cross-examining the victim in person. Section 35 extends this to prevent the cross-examination of child witnesses, and s 36 gives the court a discretion to prevent the cross-examination of by litigants in other cases which do not fall within the scope of ss 34 and 35. Section 36 (2) of YJCEA 1999 provides as follows: If it appears to the Court (a) That the quality of evidence given by the witness on cross-examination (i) Is likely to be diminished if the cross-examination (or further cross-examination) is conducted by the accused in person, and (ii) Would be likely to be improved if a direction were given under this section, and (b) That it would not be contrary to the interests of justice to give such a direction, The court may give a direction prohibiting the accused from cross-examining (or further cross-examining) the witness in person. An equivalent, and correspondingly clear, statutory provision in family proceedings does not exist. Prisons and Courts Bill In 2017 the Ministry of Justice included provisions in the Prisons and Courts Bill which sought to the address this issue. The provisions would ban cross-examination of vulnerable witnesses by their alleged abusers in the family courts by amending the MFPA 1984 to prevent any person with an unspent conviction for, or who is charged with, a specified offence from cross examining the victim of that offence, specifically in the course of family law proceedings. The proposals were very much in line with the protective provisions put in place in the criminal courts by the YJCEA The provisions in this Bill would also have permitted the court to give a direction prohibiting a party from cross examining a witness in certain circumstances, for reasons including that the cross-examination would likely cause significant distress. Further, the courts would be empowered to appoint representation if necessary in the interests of justice, the cost of which would be met by central funds. Unfortunately, as a result of the 2017 general election, the Bill fell through despite cross-party support. The family judiciary and charities such as Women s Aid have called for the government to reintroduce the provision and to do so as soon as possible. Case law Re A (A Minor) (Fact Finding; Unrepresented Party) Mr Justice Hayden highlighted the issue of cross-examination of vulnerable witnesses in family proceedings in Re A (A Minor) [2017] EWHC 1195 (Fam). This case concerned a fact-finding hearing dealing with the mother s allegations against the father as part of proceedings relating to their son. Hayden J stated that he believed it necessary in this situation to permit the father to conduct a cross-examination of the mother directly, despite the domestic violence alleged by mother. Whilst some special measures were put in place (the father conducted the cross-examination by video link and the mother was permitted to have her back to the video screen), Hayden J said that he found it extremely disturbing to have witnessed a woman be cross-examined about a terrible period of her life, and by the man who was the cause of that unhappiness. The mother in this case was left noticeably exhausted and stressed by the ordeal. Had these been criminal proceedings, the court

4 January [2019] Fam Law 51 would have had the power to instruct and fund representation to cross-examine the mother on behalf of the father, thus removing the need to allow a perpetrator of domestic abuse to have another opportunity to exercise power and control over their victim. Re J (Children) (Contact Orders: Procedure) This case ([2018] EWCA Civ 115, [2018] 2 FLR 998) concerned a father s appeal against an order made in 2016 which prohibited the father from having contact with his son, and only limited contact with his daughter. One of the father s grounds for appeal was that no findings of fact were made. Mcfarlane LJ (as he then was) considered the court s developing use of fact-finding hearings and whether the court in this case, having not conducted a fact-finding hearing, had complied with their duty under s 1 of the Children Act 1989 to promote the welfare of the children. In doing so, McFarlane LJ used the opportunity to bring attention to the problems arising out of the increasing use of such hearings combined with the cuts in Legal Aid funding for private law proceedings. McFarlane LJ considered the various strategies which his colleagues had attempted to deploy in addressing the difficulties engendered by the accused being required to conduct cross-examination of vulnerable witnesses without legal representation. One such strategy was that of finding alternative sources to fund the representation of the alleged perpetrator for the purpose of cross-examination, attempted by HHJ Bellamy in Re K and H. While this approach would seem reasonable, especially given the powers afforded to judges in the criminal courts, the order was later appealed and it was held that a judge in family proceedings does not have the power to order HMCTS to fund representation to enable such cross-examination. Mcfarlane LJ looked also at Re A (a minor) and Hayden J s conclusion that permitting the direct cross-examination of a vulnerable witness by the perpetrator is a process he would not be prepared to repeat. Mcfarlane LJ concluded that where the alleged perpetrator is unrepresented, there are very few options available to the courts, but that at present, the least worst is likely to be that of the judge assuming the role of questioner. JYvRY District Judge Read himself requested the publication of his judgment in this case ([2018] EWFC B16) regarding the cross-examination of a vulnerable witness, no doubt to draw attention to this serious and frequently raised issue. Of the hearing, DJ Read said: while this is not the first such hearing that I have conducted, it was manifestly the most unsatisfactory in terms of procedural history, preparation, process and outcome. I know that more senior members of the judiciary have repeatedly suggested the implementation of simple legislative measures which would avoid this. In consideration of the fact that neither party could afford representation, and of Practice Direction 12J, DJ Read found that the most suitable, fairest and least oppressive way to proceed was to direct both parents to file a list of questions for the judge to ask of the other about their evidence. The result was far from desirable. DJ Read was clearly appalled by the situation in which he and the parties found themselves, created by the lack of legislative measures which would give the family courts the power to appoint legal representation in such circumstances. He described the ordeal as follows: The questions I asked the father were rather stilted, and lacked any of the finesse, insight or skill of those that they would have had had they been asked by an advocate who had prepared the case properly. I cannot pretend that I was either thorough enough, probing enough, or pursued the right lines of

5 52 January [2019] Fam Law enquiry in asking questions of either parent s evidence, but especially the father s...i therefore think there is a very strong likelihood that the outcome of the fact-finding would have been different, and most probably a truer reflection of what really happened, had the parents been represented. It would surely have concluded sooner, more fairly, and at far less expense to the public purse than ultimately was the case, with two wasted days at court. It may also have been less painful for the participants. PSvBP Hayden J had the chance to revisit the issue of cross-examination of vulnerable witnesses in PSvBP[2018] EWHC 1987 (Fam), an appeal case where Judge Scaratt had conducted the cross-examination of the Mother on behalf of the Father at the fact-finding hearing, relying on ReA(a minor). Hayden J uses this opportunity to reiterate that what is at the heart of the Family Justice System is the welfare of the child: Where the court forms the view... that cross-examination of the alleged victim itself runs the real risk of being abusive...itshould bear in mind that the impact of the court process is likely to resonate adversely on the welfare of the subject children. It is axiomatic that acute distress to a carer will have an impact on the children s general well-being. This is an addition factor to those generally in contemplation during a criminal trial. Despite this added consideration for family judges, the courts are denied the power to address the situation. Hayden J expressed his frustration over the disparity in the powers of the family and criminal courts, describing it as manifestly irrational and unfair...it is iniquitous and a stain on the Family Justice System. The options available to judges in family proceedings are limited and, following case law on this issue, left Judge Scaratt in the invidious situation of being compelled to take it upon himself to conduct the cross-examination on behalf of the father. The Judge, perhaps due to such a role being unfamiliar to him, in questioning mother, did not do so fully, properly and fairly, and had in Hayden J s view, become overly protective of the mother. The cross-examination was rendered ineffective and, thereby, the process of the hearing flawed. As such, Hayden J allowed the appeal but was sympathetic to the judge and the profound challenge he faced in the circumstances. Recognising that this iniquity exists across all levels of our Family Justice System, Hayden J sought to offer some wider assistance. He noted that in consideration of the YJCEA 1999, it is important to strike a balance between the protection of vulnerable witnesses and the recognition of the accused s right to cross-examine a witness. The responsibility to do so cannot be compromised. Hayden J then went through the guidance offered within the family proceedings framework, from Practice Direction 12J to the MFPA He concluded that while we may extrapolate general principles from these materials, which illuminate the general direction a court should follow, there is no forceful and concrete framework available to family judges. As such, Hayden J set out his observations in the hope that they would be of assistance to judges and the profession, expressly stating that these are not intended to form guidance, and that it is now left to Parliament to make right this wrong: There can be no guidance where the situation is, as here, untenable. Until Parliament addresses these circumstances the best I can offer is a forensic life belt until a rescue craft arrives. Conclusion Judges at every level have expressed their concern and frustration as regards the Family Justice System s inability to fully protect vulnerable witnesses, and in turn, the children who are at the heart of proceedings. The judgments handed down are demonstrative of the will of our judges to find a solution and to explore all options available to them, even if those options are somewhat unpalatable.

6 January [2019] Fam Law 53 In contrast, the criminal courts have been gifted the power to appoint and fund representation in circumstances such as these; this begs the question, why are the family courts not afforded the same? It is essential that reforming the Family Justice System in this respect is now made a priority so that those it seeks to protect have their issues dealt with as sensitively as possible. I understand that there is a real will to address this issue but it has taken too long. No victim of abuse should ever again be required to be cross-examined by their abuser in any court, let alone in a Family Court where protection of children and the vulnerable is central to its ethos. (Hayden J, Re A (A Minor))