…Or so we imagine the headlines may run if and when a member of the press reads as far as the bottom few paragraphs of the unassuming A (A Minor : Fact Finding; Unrepresented Party) [2017] EWHC 1195 (Fam) (19 May 2017), a recent judgment of Mr Justice Anthony Hayden.

It would not be too bad a headline in fairness, because what Hayden J says, having just dealt with a case where a wife agreed to be cross examined directly by the husband she said had been violent to her (and whom Hayden finds was indeed violent) – just to get the damned thing over with – is pretty strong stuff. And taken literally this does seem to be what he is saying, although possibly it is more of a rhetorical flourish than a threat to be carried out by some sort of strike action (question : can judges go on strike?).

…it was necessary, in this case, to permit F to conduct cross examination of M directly…F was not present in the Courtroom but cross examined by video link…I granted permission for [M] to have her back to the video screen in order that she did not have to engage face to face with F. F barely engaged with M’s allegations of violence, choosing to conduct a case which concentrated on undermining M’s credibility…

Despite these features of the case, I have found it extremely disturbing to have been required to watch this woman cross examined about a period of her life that has been so obviously unhappy and by a man who was the direct cause of her unhappiness…

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 serves only 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….

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.

This direct questioning of domestic abuse complainants by their alleged abusers is what s47 of the Prison and Courts Bill 2017 was designed to prevent. But with the General Election, the Bill’s passage through Parliament was halted, and it will be for the new Government formed after 8 June to decide whether to revive it. The Bill emerged following significant criticism by Women’s Aid and others about the lack of any protective mechanisms in cases where domestic abuse was alleged but the alleged perpetrator had no lawyer to represent him/her. The problem existed before, but was made worse by cuts to the scope of legal aid in 2013. But as the judgment itself points out, judges identified the problem and the need for law reform more than a decade ago.

It is worth noting that complaints by other judges were dismissed as rather over-egged by the Court of Appeal in 2015, in Re K and H [2015] EWCA Civ 543 (see write up here), who said that the concerns of a previous judge about his “profound unease” and that a judge conducting cross examination himself was “wholly inappropriate” had been “unecessarily cautious”.

In a simple straightforward case, questioning by the judge is likely to be the preferred option and it should present no difficulties. The judge will know what the unrepresented party’s case is. It may be helpful for the judge to ask him or her to prepare written questions for the court to consider in advance. Sometimes, unexpected answers may be given to the judge. These may require the judge to ask the unrepresented party to comment on the unexpected answers and to suggest supplementary questions for the judge’s consideration.

Mr Justice Hayden does not say whether he considered asking questions of the mother on behalf of the father himself, or if so why that was discounted. But he does say that the direct cross examination of her by the father was “necessary”, so it seems reasonable to assume he considered himself questioning to have been inappropriate or that the father insisted on conducting his own cross examination (this latter seems more likely from the description of the focus of the cross examination and from the mention of the judge being unable to prevent it) It was identified in Q v Q [2014] EWFC 31 (06 August 2014)* that the Family Court judge probably has no absolute power to prevent a litigant from asking questions if he demands to do so.

It is extremely unusual for a judge to simply refuse to hear a certain type of case, more so for a judge to say he cannot do so because it would breach his judicial oath to “do right to all manner of people…without fear or favour, affection or ill will.”. That he has spoken out in this way appears to be a mark of his extreme disquiet at having to watch the distress cause to a victim of domestic abuse by the court process and by her abuser.

A stain indeed.

*The author appeared in Q v Q for the mother

Feature Pic : Fist by Skeptical View on Flickr (Creative Commons) – thanks!