Re Z (Prohibition on Cross-examination: No QLR) [2024] EWFC 22

This is a case in which Sir Andrew MacFarlane provided guidance on the approach that the Family Court should adopt when a Qualified Legal Representative (QLR) is required but despite diligent searches, no QLR can be found.

Directions when no QLR can be found

When directing the appointment of a QLR, a requirement should be included in the court order directing that the case be returned to the judge for further directions if, after 28 days (or whatever reasonable period is chosen), the court has not succeeded in appointing the QLR.

The principal options available to the court at this stage are:

1. An adjournment in the hope that a QLR can be found;
2. An adjournment to allow one or both parties to instruct their own advocate;
3. Reviewing the need for the vulnerable party to give oral evidence and be cross-examined, including reviewing the need for there to be a fact-finding hearing in the proceedings;
4. Considering any other alternative means of avoiding in person cross-examination between the relevant parties;
5. The court taking on the task of asking questions.

If the court decides to abandon further attempts to appoint a QLR, the previous direction appointing one must be discharged and, as a matter of good practice, reasons should be recorded on the face of the order or in a short judgment.

Achieving fairness 

If no QLR is available, the court is not automatically required to conduct the questioning itself. All possible options should be considered. Whilst the court will consider that ‘a satisfactory alternative to cross-examination in person does not include the court itself conducting the cross-examination’ (PD 3AB, para 5.3), MacFarlane P noted that this was not black-letter law. The court may decide there is no alternative to it asking the necessary questions if it is in the interests of justice, bearing in mind the overriding objective (FPR 1.1-1.2).  

The overarching lodestar the court must follow when asking questions on behalf of an unrepresented party is achieving fairness. Judges no longer have a detached position so must guard against the risk of losing their objectivity and diminishing their ability to evaluate and weigh the evidence. This includes avoiding descending into the arena at any stage and the temptation to move into full cross-examination, particularly those who have been practising advocates.

Fairness requires the court to explain the process to the parties in straightforward terms. MacFarlane P deliberately avoided describing the process as ‘cross-examination’ and suggested referring to it as the court ‘asking questions that the other party wishes to have asked’. The essential difference is that the court is acting as a channel of communication and not as an advocate. The task the court undertakes is intended to be an alternative to cross-examination, so that the case of the prohibited party is fairly and properly put to the other party.

Hayden J’s approach 

MacFarlane P endorsed the approach of Hayden J in PS v BP [2018] EWHC 1987 (Fam):

• A Ground Rules Hearing (GRH) will always be necessary.
• The GRH should be conducted prior to the fact-finding hearing.
• Judicial continuity between the GRH and the substantive hearing is essential.
• The accuser bears the burden of establishing the truth of the allegations. The investigative process must ensure fairness to both parties. This obligation cannot be compromised in response to a witness’ distress.
• Where the factual conclusions are likely to impact on the arrangements for and welfare of a child, the court should consider joining the child as a party and securing representation. The child’s advocate may be best placed to undertake cross-examination.
• The court should require written questions. Grounds of cross-examination should be identified under specific headings.
• A judge should never feel constrained to put every question the accused seeks to ask and must evaluate relevance and proportionality.
• The judge should craft and hone questions that respond to the answers given. The process can never become formulaic.

Practical points

Macfarlane P suggested the court consider the following practical points when appointing a QLR or preparing to put questions itself:

• Where it is impractical for the QLR to attend court, and where holding the hearing remotely means a QLR who could not otherwise act can be appointed, it should be acceptable for the QLR attend remotely.
• The default position for the full hearing should be for the QLR to be at court.
• In all cases (whether there is QLR or not) at the GRH, or earlier, the court should direct that the prohibited party should submit a clear statement shortly stating the allegations, facts or findings they seek to establish.
• The prohibited party should be required to file a written list of the questions that they wish to have asked prior to the main hearing. The list should go the QLR, or the court if there is no QLR, but not to the witness or other parties. This process should not prevent the prohibited party from identifying additional questions that may arise during the hearing.

20th Feb 2024

Matthew Timm

Call 2021