I recently attended a hearing at Cardiff Family Court as a legal blogger under the Reporting Pilot, in the hope of finding out more about QLRs (under the ‘qualified legal representative’ scheme), as we discussed in this post: What’s a QLR and what’s all the fuss about?). I did learn a lot more about the QLR scheme although disappointingly (for me), as the alleged perpetrator did not attend the hearing, I didn’t see any QLR cross examination in action. There were other interesting features in the case though: the judge’s decision to proceed with the hearing despite the father applicant’s absence and the outcome including a ‘barring order’ to try to avoid him returning to court in the near future, further harm to the mother respondent and her child, and further wasting the court’s time.
I am especially grateful to the mother’s QLR for taking time to discuss the scheme with me during the breaks in the hearing. I am going to call him ‘the mother’s QLR’ although his role was to cross examine the father on her behalf, not to advocate for her, and likewise I am going to call the other QLR who attended remotely ‘the father’s QLR’. The differences between the role of a QLR under this scheme and a legal representative for a party are set out in our earlier post. Statutory guidance on the role is published here. The guidance explains:
In family or civil proceedings where specified evidence is adduced that a person who is a witness has been the victim of domestic abuse carried out by a party to the proceedings, that party to the proceedings may not cross-examine the witness in person and vice versa (that is, where specified evidence is adduced that a person who is a party to the proceedings has been the victim of domestic abuse carried out by a witness, that party may not cross-examine the witness in person.
Doubts about the effectiveness of the scheme have been raised by the Domestic Abuse Commissioner and the President of the Family Division, the latter describing the situation as ‘dispiriting and very concerning’.
Context for the QLRs in this hearing
The case concerned a child of early primary school age whose parents had separated four years ago. This was the second application by the father for contact through a child arrangements order (CAO). As the mother stated in her evidence, she had spent 24 months over the past four years in court proceedings initiated by the father. This had caused her great distress as she felt it was distracting her from her care for her child, for whom she had worked hard to build a safe and happy life. She had had to take many days off work to attend hearings. The first application had been made in 2019, following which the mother had raised issues about domestic abuse by the father, including violence in the child’s presence, and the court had decided to hold a finding of fact hearing. However, the father stopped engaging with the proceedings and his application was dismissed in September 2020. An order was made that the child live with the mother. That first set of proceedings had been delayed by the father raising questions about his paternity in response to approaches by the Child Maintenance service. An order for paternity testing was made but the father did not comply. He had not contributed financially to the child’s upbringing.
Two years later, the father applied again for a CAO. The judge in the new case, District Judge Muzaffer, decided that a fact-finding hearing was still necessary before he could proceed to consider contact and the child’s welfare. The mother did not have a lawyer – this meant that she could not cross examine the father on his evidence because section 65 of the Domestic Abuse Act 2021 has introduced a prohibition on a victim/alleged victim either being cross examined by the other party or having to cross examine the other party. Therefore, the court had appointed a QLR to do this for her. At that stage the father had said he would be represented by a barrister at the fact-finding hearing (but this changed). The mother’s QLR had attended a ground rules hearing a few weeks earlier, which the father had failed to attend but he had emailed the court saying he wanted to end proceedings on health grounds. The judge had stated that some medical evidence of this reason for withdrawing was required. When it became apparent that the father was not legally represented, the court sought an appointment of a QLR for him.
Where both parties in a case which will involve hearing evidence on domestic abuse allegations are litigants in person, each will need a QLR to undertake the cross examination of the other party.
The mother’s QLR was from a local solicitors’ firm which has taken on several QLR cases since the scheme began. The judge and the mother both continually expressed their gratitude for his work. One interesting aspect was that he had prepared a bundle for the court. Although there were relatively few documents, this was very helpful for everyone. I asked him if this was part of his duties and he replied that as he had to structure the documents for himself, he might as well do extra copies.
There had been some confusion because of the father indicating that he was going to withdraw this (his second) application but he hadn’t paid a fee to formally withdraw. The fact finding went ahead, the court having appointed a QLR for him at short notice. Unusually, the court had allowed remote access for this QLR, who was not local. Remote access had already been arranged for the father, who lives and works abroad. When evidence is to be heard and tested in family court proceedings, everyone is now normally expected to appear in person. Because it was impractical for the father to attend in person and remote access was arranged, it didn’t seem problematic to allow his QLR and the one witness for the mother, neither of whom lived near Cardiff, to also join remotely. [CORRECTION 8.08.23: The father had been ordered to attend the fact finding hearing in person. The reason his QLR was allowed to join remotely was that she had been appointed at too short notice to travel to Cardiff.]
Although the father had said he wanted to withdraw on health grounds, he had also emailed to say he couldn’t attend hearings because of work commitments. This contradiction was a factor in the conclusions by the judge about the father’s use of litigation as continuing coercive and controlling behaviour toward the mother. The father’s QLR had not received full instructions from him about the evidence, so she was discharged from the case. The judge consulted the statutory guidance which specifies that the court must protect all parties’ Article 6 and Article 8 rights. The role of the father’s QLR was to put questions to the mother based on the position being put forward by the father, but the only evidence available to the court was his brief statement that didn’t put forward any substantive case. Once it was decided to discharge the father’s QLR, the mother’s QLR was also discharged because there was no one present for him to cross examine.
Decision to continue with the fact finding hearing
Before the QLRs were discharged, the judge explained that he was considering whether it would be right to proceed in the father’s absence. There were four specific incidents in the mother’s statement relating to physical, verbal and emotional abuse, and coercive and controlling behaviour. These had been denied in a brief, general way in the father’s statement. As the judge put it, the father had deprived the court of the opportunity to hear his own evidence or his questions to the mother on hers.
Under rule 27.4.4, where a respondent appears at a hearing but the applicant does not, the court may refuse the application or, if sufficient evidence has previously been received, proceed in the absence of the applicant. However, under rule 27.5, it is possible for a non-attending party to set aside a judgment against them aside, if they had a good reason for not attending and a good prospect of success if they had. The amount of details and reasons contained in the judgment delivered at the end of this hearing should preclude any prospect of that.
The judge also wanted to consider whether, if the findings were made, it would be appropriate to make an order under section 91(14) of the Children Act 1989 which would have the effect of not allowing the father to bring more applications without first getting leave from the court.
The binary nature of the fact finding exercise was explained, and the judge took the mother through her statement. It’s not appropriate for a judge to cross examine a witness in these circumstances, but he asked the mother about each ‘counterpoint’ he could find in the father’s short statement. In his judgment, delivered orally later that day, he found that all four specific allegations were true. He added a fifth matter: that litigation had been pursued by the father as a further means of coercive and controlling behaviour, rather than demonstrating a genuine interest in the child.
The father had not produced sufficient evidence of his medical condition as a basis for withdrawing. The judge noted that it was not essential for an applicant to submit a formal application with the relevant court fee for him to be treated as withdrawing the application. Therefore one option would have been to accept that the father was withdrawing, and end the proceedings that day, without putting the mother through the distress of giving oral evidence to support her statement. However, because in both applications it had been necessary to arrange a fact finding hearing, there was a likelihood that the findings would affect a welfare decision about the child. This was a section 8 Children Act application by the father and therefore the child’s welfare is the court’s paramount consideration. If the father did apply for contact again in two years’ time, the allegations would by then be about ten years old. Although giving her evidence was distressing, the mother can be reassured that the facts she stated are now on record as truthful.
Barring order under section 91(14) and 91A
We wrote about the strengthened guidance on section 91(14) here.
The judge in this case was concerned by comments made by the father about trying to revive his relationship with the child in the future, and the anxiety such words were bound to cause. He noted that section 91A of the Children Act 1989 referred to circumstances where a further application might put a child or another individual (here, the mother) at risk of harm. Having heard evidence about the impact of the first and second applications on the mother, he concluded that she and the child now need respite from the threat of court proceedings. He explained the nature and purpose of a s 91(14) order and that these are time limited. He suggested an order of two years’ duration but the mother asked him to consider three – on the basis that there might be two-year pattern of repeat applications. This was reconsidered and agreed by the judge.
Some more thoughts on QLRs
In the light of scheme having had a bad press, especially given the disappointment expressed by the President, I was quite surprised by this relatively positive picture. One gripe I have read about is that there is no reimbursement for travel. It is apparently exceptional to allow remote access, so although some parts of the country apparently find it more difficult to find a QLR than others, this option may not be possible. Presumably there will be an evaluation of the scheme in due course that might iron these issues out.
It must be frustrating sometimes for a QLR knowing they can’t advise a party going through such a distressing experience. In this case, the mother had successfully applied for a friend of hers to be her McKenzie Friend who was clearly invaluable moral support throughout. She was also thanked by the judge.
The QLR mentioned to me that he always explains to the party he’s appointed for, that the privilege between a client and a lawyer does not apply to a QLR. I can see that the guidance says: ‘The court-appointed qualified legal representative will need to explain to the prohibited party that they cannot promise the confidentiality that usually attaches to lawyer-client relationships (legal professional privilege).’ That would be quite difficult to explain, I think.
Another interesting question is whether a QLR can or should cross examine other witnesses. For example, in this case, there was one other witness, a former neighbour of the mother who had given a statement supporting the evidence of one of the incidents of violence. If the father had been present and had disagreed with her, would he or his QLR cross examine her? In other cases, there might be a whole array of witnesses, including professional and expert witnesses. The guidance however says: ‘ …. the qualified legal representative’s role will be limited to the cross-examination of the witness or witnesses whom the prohibited party is prevented from questioning in person.’ i.e. the QLR will only cross examine the perpetrator/alleged perpetrator. Apparently practice varies between cases.
And on transparency
Because the court lists go up after 5 p.m the preceding day, I wasn’t able to give much notice of my intention to attend, but the Transparency Order was straightforward. The judge explained the Reporting Pilot to everyone at the outset of the hearing and asked if there were any objections. He emphasised that any objections would need to be specific. The mother replied that as a litigant in person who had had had to do her own research, she thought that reporting was a good idea and might help others. Under the Reporting Pilot, it is permissible for the mother to talk to a legal blogger. Although we didn’t discuss the case as such, it was useful to chat about how she had navigated sources of legal advice.
Considering the number of hearings the judge was trying to pack in that day, he seemed to me to go to a good deal of trouble to ensure the mother understood every point made. Bearing in mind she had no professional legal advice and had been largely reliant on Google, it was clear from her final relief and thanks that she had indeed followed every word carefully and was clear about the reasoning and outcome.
We have a small favour to ask!
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