In private law proceedings issued pursuant to section 8 of the Children Act 1989 concerning a child aged three, the judge directed that the matter be listed for a two-day fact-finding hearing and, there being contested allegations of domestic abuse, ordered that the court appoint and arrange for a qualified legal representative to cross-examine the mother on behalf of the unrepresented father, since 31T of the Matrimonial and Family Proceedings Act 1984 prohibited cross-examination in person by a party where there was evidence that the witness to be cross-examined had been a victim of domestic abuse carried out by that party. Thereafter, the court office undertook no fewer than 120 different communications in an attempt to find a qualified legal representative, but none could be found who was available or willing to take on the case. Following the mother's decision to proceed as a litigant in person, there was also a potential role for a second qualified legal representative to be appointed to ask questions of the father on her behalf. In the event, both parties were keen for the factual issues to be resolved without a further adjournment and, since it was unlikely that any further attempt to find a qualified legal representative would be successful, the hearing proceeded with the judge asking all of the questions of each of the two parties. After giving the substantive judgment in the case the judge, the President of the Family Division, went on to give guidance on the approach that a judge or magistrates sitting in the Family Court ought to adopt when the court had directed that a qualified legal representative was to be appointed for a party but, despite a diligent search by the court office, no such representative could be found.
On the issue—
Held, where no qualified legal representative could be found, a judge or magistrates sitting in the Family Court would need to take account of para 5.3 of FPR 2010 PD 3AB on the prohibition of cross-examination in person in family proceedings under Part 4B of the Matrimonial and Family Proceedings Act 1984, which stated that a satisfactory alternative to cross-examination in person did not include the court itself conducting the cross-examination on behalf of a party. However para 5.3 was not black-letter law and did not prevent the court undertaking the task if it considered that, in the interests of justice, it nevertheless had to do so. If the court decided to abandon further attempts to appoint a qualified legal representative, the previous direction appointing one had to be discharged and, as a matter of good practice, the reasons for discharge ought to be very shortly recorded on the face of the order and/or in a short judgment. When undertaking questioning, the court had to tread a narrow path between ensuring the witness’s evidence was adequately tested by the points that the other party wished to raise, while ensuring that the judge did not enter the arena and was not seen in any way to be promoting the case of one side or the other. A further need for caution might arise from the need for the judge to avoid taking an important point on behalf of one party which that party had not themselves raised. During a fact-finding hearing it was to be expected that a judge might spot a point that had not been raised by either party but required clarification and, in such circumstances, provided that the manner in which the judge raised the point and questioned the party or parties about it was fair, judges ought not to feel that they were prevented from doing so. The lodestar for a judge, magistrate or legal adviser who took on the task of asking questions on behalf of an unrepresented litigant in those circumstances had to be fairness, requiring the court to be very open with the parties as to the process that was going to be adopted by explaining what was to happen, step by step, at the start in short straightforward terms (paras 24–27, 29, 33–36, 42).
Practical points for courts to consider either when appointing a qualified legal representative or when preparing to put questions itself (paras 41, 42).
The mother and the father both appeared in person.