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A (short) View from the Presidents Chambers – July 2022

|Guidance|Family

1. This shortened View is to acknowledge the continued contribution of all who work in the Family Court, secondly, it is intended to alert readers to the introduction of important provisions as a result of implementation of the Domestic Abuse Act 2021 [‘DAA 2021’]. A fuller “View” will be published in the Autumn.

Thank You

2. The most important message I wish to convey is a sincere thank you. Your inexhaustible efforts to keep the Family Justice system functioning, in the most challenging of circumstances, continues to be astonishing. I am deeply grateful to all who work so hard for those who turn to the Family Court for protection or dispute resolution, be they magistrates, legal advisers, judges, court staff, social workers, practitioners, Cafcass and Cafcass Cymru officers, ADCS & ADSS, the NFJO, MoJ and DfE officials or volunteers. Thank you.

Lower threshold for Children Act 1989, s 91(14) filter

3. Section 67 of the DAA 2021 inserts a new s 91A into the Children Act 1989 [‘CA 1989’]. For two decades, the circumstances in which a party may be prohibited from bringing further CA 1989 applications has been governed by the Court of Appeal decision in Re P [1999] 2 FLR 573 which required the use of the power in s 91(14) to be exercised with great care and sparingly, the exception not the rule.

4. CA 1989, s 91A establishes a new, lower, statutory threshold for the deployment of a s 91(14) prohibition by which the power may be exercised when the court is satisfied that the making of an application for a CA 1989 order of a specified kind would put the child concerned or another individual ‘at risk of harm’.

‘Qualified legal representative’ to cross-examine vulnerable witnesses

5. For a long time, the judiciary and many others have called for provision of an advocate to ask questions of a vulnerable witness on behalf of a litigant in person. The introduction of a power for courts to appoint a ‘qualified legal representative’ to undertake this task is therefore a most welcome development. The relevant statutory provisions are to be found in Matrimonial and Family Proceedings Act 1984, Part 4B [ss 31Q to 31Z] (as inserted by
DAA 2021, s 65). These are now underpinned by a new Practice Direction, PD3AB and, more generally, by Statutory Guidance (external link). These measures will be in force for all family proceedings started after the commencement date for s 65 (21st July 2022) [see PD3AB,para 1.5].

6. Recourse must be had to these provisions for the detail of the scheme, but in essence a person (one convicted of, cautioned for or charged with a specified offence) is prohibited by statute from cross-examining a witness who is the victim, or alleged victim of that offence (and vice-versa) [s 31R]. Section 31S protects a party against whom an on-notice protective injunction is in force. Similarly, s 31T prohibits a witness who has been the victim of domestic abuse carried out by a party to the proceedings from being cross-examined by that party. In other cases, the court may give a direction prohibiting cross-examination where it appears that the ‘quality condition’ or the ‘significant distress condition’ in s 31U is met and ‘it would not be contrary to the interests of justice to given the direction’.

7. Where cross-examination is prohibited the court must consider whether there is a satisfactory alternative means for cross-examination. A satisfactory alternative does not include the court itself conducting the cross-examination [PD3AB, para 5.3]. If there is no satisfactory alternative, then the court must invite the prohibited party to arrange for a qualified legal representative to act for them for the purposes of cross-examining the witness [s 31W]. If that invitation does not resolve matters, the court must consider whether it is necessary, in the interests of justice, for a qualified legal representative to be appointed by the court.

8. The introduction of the new scheme has been swift with the new provisions coming into force less than two weeks after publication of PD3AB and Guidance. For understandable reasons, ministers were committed to bringing the measures in before the Parliamentary recess. It is anticipated that, as the power to appoint a representative will only apply to new proceedings (as opposed to a fresh application in existing proceedings) issued on or after 21 July, the first time that they become a live issue in any case is unlikely to occur for some weeks after that date, by which time further guidance and basic training material will be available to the Family judiciary.

9. These provisions, which apply not only to fact-finding hearings but to any stage at which a vulnerable witness gives oral evidence, are likely to be widely taken up. In order for an advocate to be appointed by the court to this task they must be named in the court-maintained list of qualified legal representatives [PD3AB, para 6.2]. To be on the court’s list an advocate should either have attended a training course relating to the cross examination of vulnerable witnesses or undertaken to attend a relevant training course in the next six months.

10. It is essential that the new scheme can deliver a qualified advocate in every case in which the court determines that one is needed. That will only occur if we have a significantly greater number of advocates signed up on the list. I am therefore keen to encourage any advocate who is willing to become involved in this work to put themselves forward on the basis that they undertake to take the training course during the next six months. Now that the new provisions have become a reality, I anticipate that practitioners will step up to the task as I, and all those involved, very much hope that they will do.

Take a break!

11. Finally, I hope that all who read this View will take the opportunity to have a well-earned and very enjoyable break over the summer.

Sir Andrew McFarlane
President of The Family Division
27 July 2022