Family Law

Should a court allow a potential perpetrator of domestic abuse, when they are acting in person, to cross-examine their alleged victim? Does this run the risk of the proceedings themselves being abusive? Or will it unfairly curtail the ability of the accused to put their case? If the court does not allow direct cross-examination, how should it proceed? This was the dilemma the court faced in PS v BP [2018] EWHC 1987 (Fam). Luke Eaton, barrister at 1GC|Family Law, who represented the appellant, looks at this perennial problem.

What are the practical implications of this case?
The prospect of an alleged abuser cross-examining an alleged victim of domestic abuse is an unappealing one that many, if not all, family lawyers have to grapple with all too regularly. Given the current state of legal aid provision, the rise in litigants in person and a seeming lack of legislative willingness to tackle the issue, it is not a problem that appears to be going away any time soon.

As such, the court is left in a difficult situation—how does it balance the Article 6 rights of the accused while also safeguarding the accuser and allowing them to give their best evidence? This has been a question that has troubled courts for some time—in 2017 Hayden J (Re A (a minor) (fact finding; unrepresented party) [2017] EWHC 1195 (Fam), [2017] All ER (D) 49 (Jun)) commented that ‘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 inquiry ‘exists at every level of our family justice system and is plainly causing real harm and distress’.

In PS v PB, Hayden J echoes the cries of many practitioners that the Government must act swiftly to remedy this dire situation. However, until then, this case provides a ‘forensic life belt until a rescue craft arrives’ for those faced with such a situation (as set out in full at para [34] of the judgment).

It is plain from the judgment that all family lawyers will need to be fully conversant with the contents of both Family Procedure Rules 2010 (FPR 2010), PD 12J (as recently revised) and the (relatively) new FPR 2010 (SI 2010/2955), Pt 3A and FPR 2010, PD 3AA.

In a case where it seems that the court will need to hear a case ‘put’ to a key factual witness (be that the alleged victim or otherwise) where the allegations are ‘serious and intimate’ a ground rules hearing will always be necessary to resolve the question of how a fact-finding hearing will proceed (eg what special measures will be necessary and how will cross-examination proceed). In most cases that ground rules hearing should be conducted prior to (and separate from) the hearing at which the fact-finding exercise is being undertaken. There will need to be judicial continuity at both hearings.

Practitioners would be wise to bear in mind the obligations that FPR 2010 (SI 2010/2955), Pt 3A places on them. It would probably be best to make a paper application under Pt 3A to highlight and resolve these issue(s) as soon as possible (using the FPR 2010, Pt 18 procedure as set out in FPR 2010, Pt 3A). It follows logically from this judgment that it is unlikely to be good enough to wait to make any such application orally on the day of the fact-finding hearing.

When considering what to do, the judge must not be compromised in response to a witness’s distress. There is no presumption that the accused will automatically be barred from cross-examining the accuser. Rather, the judge must ‘consider whether the evidence would be likely to be diminished if conducted by the accused and would likely to be improved if a prohibition on direct cross-examination was directed’. These two factors may be divisible. The court should also bear in mind, if it forms the view that cross-examination runs the real risk of being abusive, that acute distress to a carer will have an impact on any children’s general wellbeing.

Hayden J also suggested that, in these situations, the court should consider joining the child as a party and securing representation. Where that is achieved, the child’s advocate may be best placed to undertake the cross-examination– see M v F and others [2018] EWHC 1720 (Fam), Re S (wardship) (guidance in cases of stranded spouses) [2011] 1 FLR 319.

If cross-examination is not to be permitted by the accused (and no other advocate is able to undertake it) then the accused’s proposed questions should be reduced to writing, identifying in particular ‘grounds of cross-examination’. Despite this, at the actual fact-finding hearing, the judge need not put every question proposed. The judge will have to evaluate relevance and proportionality. Given the nature of cross-examination, the judge will have to craft questions which respond to answers given.

Given the investigative nature of Children Act 1989 proceedings, it can still be ‘fair’ for a judge to conduct questioning in a more open manner (ie less adversarial style) than if conducted by an advocate.

It seems that best practice in these cases must be to raise the issue as soon as possible within the proceedings to prevent it causing greater problems (eg delay and/or risk of an appeal) later on.

What was the background?
The father applied for a child arrangements order to spend time with his three-year-old daughter. In the course of those proceedings the mother made serious allegations against the father, including that he had raped her and strangled her– allegations which were ‘of the utmost gravity’. As such a fact-finding hearing was directed.

At the fact-finding hearing, the father came before the court as a litigant in person. The mother was represented and had been throughout the proceedings. That fact-finding hearing was listed before a judge who had not dealt with the matter previously.

At the start of the hearing the judge decided, having heard no submissions on the point, that the father would not be allowed to directly cross-examine the mother. The judge relied upon (and quoted) the decision of Hayden J in Re A. This issue had not been previously raised, and took the father by some surprise. The judge then proceeded to cross-examine the mother on the father’s behalf.

At the conclusion of the hearing the judge made findings against the father. The father appealed.

What did the court decide?
The appeal was allowed, and a re-hearing directed. In essence, Hayden J found that the father’s questions, in so far as they were put to the mother 'at all, by the judge, were rendered superficial, overly simplified and repeatedly phrased in a way as to minimise their impact’. The judge had ‘become overly protective of [the mother]’.

Hayden J was ‘entirely satisfied that the hearing fell short of what fairness demands and to which the father was entitled’.