Finally…it’s here. Well, nearly…
I had plans for a proper blog post. But I just can’t. It’s too hot. And I’m tired. Tired of waiting for things that are ultimately a disappointment. Like the cool air conditioned train I shall be eagerly waiting to catch on Tuesday morning, but which I know, with a sinking feeling, will be sweltering and smell of body odour, cannabis and despair (the despair will be mine, the rest belongs to others).
Another barrister tweeted something prescient at me over the weekend about the prohibition on direct cross examination. She said ‘it would be a shame if perfect is allowed to be the enemy of the good in this situation’. That is true. Nobody who has given it more than ten second’s thought has ever thought that these provisions would be more than a klonky and over-complex compromise to a problem exacerbated, if not entirely created, by LASPO. They were never going to be perfect. And I have bitten my lip for a while now, fearful that if too much noise was made about the imperfections someone somewhere might actually listen – and decide not to implement it at all. Better something than nothing I thought.
I’m not so sure now.
It is becoming clear there are not enough lawyers to run the new scheme. I say it’s becoming clear – it’s been written on the wall for some months but those that needed to see the scrawl on the wall have had their backs to it. But there is more and more anecdotal evidence that is the case. And of course, it is this slight numbers problem that led, belatedly, to the scheme now only applying to new cases – to reduce demand until supply has come up. The prohibition is mandatory in most cases, remember. There is no discretion as to whether the prohibition should apply when those provisions are triggered. In many cases where the prohibition is triggered the QLR scheme will be the ONLY route through which the court can discharge its duty under the Act, and the only route through which evidence can be heard (not just fact finding hearings by the way, any hearing involving evidence of a victim/ alleged victim). If there isn’t one available: everything stalls. Judges CAN’T go back to the previous unsatisfactory situation of asking questions themselves. The statutory guidance (correctly) says that is unsatisfactory and inappropriate.
And there’s another problem. Because that stat guidance tells a truth we’ve all known for some time, that it’s not okay for judges to be doing the questioning on behalf of a party. And yet that is exactly what judges have had to be doing in cases since LASPO in the absence of an alternative. It is what a civil servant told me they should ‘just keep on doing’ in the many many existing cases which won’t fall under the new provisions (and so aren’t eligible for a QLR even if they justified one). But how can they in the face of that stat guidance? How can it be inappropriate in one case but not in another? What on earth is the solution for those cases? They can’t even get in the queue for a QLR.
What are the options for the court in this situation? Or where is the wriggle room?
- Think very hard about whether a fact finding / oral evidence is really necessary? Well yes, but this should be happening anyway (see K v K wherein the Court of Appeal said ‘Woah, woah, woah – that’s not quite what we meant in H-N. Steady on!’). And if it needs a fact find it needs a fact find. Same with oral evidence at welfare hearings.
- Interpret the ‘specified evidence’ provisions strictly to limit the numbers of cases where the provisions are triggered? Careful now…
- Prohibit a party from asking any questions – effectively prohibit them from challenging the evidence other than through submissions? Surely not.
- Mckenzie friend asks the questions? Rarely going to be a solution and lots of potential for catastrophe for either party. In terms of organisations, Support Through Court has just been decimated so they are unlikely to be able to assist. Plus, if a McKenzie friend is doing the questioning they can’t be focused on supporting the party they are with.
- Child’s lawyer asks questions? Problematic. I could write an essay on this (but I’ll spare you). I’ve done it several times in several guises. I will not be doing it again.
- A legal adviser is borrowed to voice the questions. Not feasible for resource reasons if nothing else. (ditto court staff).
Here is what I’ve learnt over the years of trial and error and bodging to try and make hearings fair with limited resources:
- The person asking the questions needs to be a lawyer or judge so they can implement ground rules, avoid irrelevance or inappropriate questions, deal with follow up questions etc.
- However, if the judge asks the questions this places a significant burden on the judge, who is often provided with insufficient time to prepare for such a role, and it creates a perception of bias.
- It is entirely unfair to place this burden on a legal representative for another party. It compromises the lawyer and impairs their ability to focus on their own case. It creates a perception of partiality. It is also ineffective as a lawyer cannot be responsible for editing, selecting or approving questions. Additional work is unremunerated (of course it is).
Implementing these provisions is good. But implementing them for only a minority of cases compounds an already impossible conundrum for judges dealing with old cases without the solution of QLR but now operating in the shadow of stat guidance that makes it plain that their imperfect solution of just doing it themselves won’t wash.
Implementing these provisions with insufficient numbers of lawyers, insufficient fees, insufficient training is …not perfect. For sure, the numbers of QLRs immediately required will start small, but it will ramp up in due course to thousands a year. I’m not sure what prospects there are of the numbers building to the required level, so I’m afraid that I think that this is delaying the inevitable. Which is that everything will grind to a halt when demand outstrips supply. There will be no way out for judges. dealing with litigants in person who need to be given an opportunity to test and challenge evidence.
Incidentally, someone on twitter suggested criminal advocates might do the work, not least because some have experience of the equivalent scheme in crime. I think that might work in relation to fact finding hearings. I’m not so sure if lawyers with no family experience would find the task of asking questions in welfare hearings (or FR final hearings, say) that easy.
I have, I now realise, accidentally written a blog post. It’s not unlike the one I wrote a couple of weeks ago, I suppose because it’s been on my mind since then and I realise that I still can’t really wrap my head around out how all this is going to work. It isn’t going to be perfect and I don’t think it’s going to be good either. I hope I am wrong and it will all be fine. Or at least that it will be a marginal improvement on the current situation.
Weather forecasts are sometimes wrong. My forecast may be wrong too. But I won’t be taking my winter coat on that train on Tuesday. Because we all know it’s gonna be blinkin’ hot. And there’s a good chance my train will grind to a halt leaving me stranded between stations, in a perfect – but somewhat sweaty – metaphor.
Right, I’m going for a lie down in a hot, dark room…wake me up when it’s raining and the national emergency is over.
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).