Prohibition of Cross Examination of alleged victims by their abuser and the implications for Family Practitioners.

In the last few weeks, I’ve noticed a flurry of activity as practitioners and the Family Court try to adapt to the fact that the provisions of s.65 of the Domestic Abuse Act 2021 now prohibit the cross-examination of an alleged victim of domestic violence by a perpetrator. Until the12.07.22 when this became law, despite the same being prohibited in the Criminal Court for some time, the Family Court dealt with such matters where the alleged perpetrator was a litigant in person by ordering that he or she should email or write any questions that they wished to raise of their alleged victim for the Magistrates or Judge to ask on their behalf.?This is now no longer permitted, and the court must consider before any such hearing whether a Qualified Legal Representative (QLR) should be appointed by the court to ask those questions on behalf of the alleged perpetrator. This presents a far more satisfactory position to retain the independence of the Judiciary.

For some reason it seems that few advocates are yet signed up to the Qualified Legal Representatives scheme and until recently, this issue had not really raised its head but we are now at the stage where several applications which were issued after the 21 July 2022 and to which this scheme applies are now at the PTR stage before any finding of fact. ?Practitioners will need to note that the issue of whether a QLR should be appointed should be identified at the hearing before the PTR, so that the court can appoint one or the alleged perpetrator can instruct their own to represent them at the PTR. ??I would suggest that it would be good practice to consider whether one should be instructed at the stage when schedules/ statements are filed so that both parties can file the relevant application form in advance of the return hearing.?

Last week Mr Justice Peel published standards orders which can be made within this scheme which are to be used forthwith:

https://www.judiciary.uk/guidance-and-resources/message-from-mr-justice-peel-standard-orders-cross-examination-and-qlr-provisions/