Domestic abuse: re-abuse in non-molestation order proceedings
The proposal set out here, arises from the issue identified by Women’s Aid and, in case law, by Roderic Wood J in H v L and R  EWHC 3099 (Fam)  2 FLR 162 over ten years ago. The problem was – to an extent – intended to be provided for by a government bill (Prison and Courts Bill) lost with the 2017 election. As Roderic Wood pointed out, and as explained below, criminal proceedings provide protection from re-abuse in the witness box by a respondent/accused in person cross-examining the complainant or other witness (Youth Justice and Criminal Evidence Act 1999 (‘YJCEA 1999’) s 38(4)). Family proceedings do not provide the same, or any, protection.
The scheme proposed here can provide a prototype for an effective scheme for the government to run; and which will cover the problems identified by such judges as Lady Hale in the Supreme Court and Hayden and Peter Jackson JJ in the Family Division in for example cases like Re A (Sexual Abuse: Disclosure)  UKSC 60,  1 FLR 948,  2 AC 66, Re A (A Minor: Fact Finding; Unrepresented Party)  EWHC 1195 (Fam), Hayden J and H v D (Appeal – Failure of Case Management)  EWHC 1907 (Fam). In all of these cases the witness or party could have been assisted only if the bill’s ‘significant distress condition’ exemption in the bill applies.
Cross-examination in person of a complainant in family proceedings
YJCEA 1999 s 35 and 36 makes unlawful cross-examination in person of a witness by an accused in person in relation to certain charges, mostly sexual, of violence or against children. YJCEA 1999 s 37 is a catch-all section. It leaves it, finally, to the court to decide whether a direction should be made (s 37(2)) that such cross-examination should not be permitted, with the factors for the court to consider in making its decision in s 37(3).
If ss 35-7 apply – that an accused in person should not cross-examine in person a witness – then s 38 come into effect. The court must ‘invite’ the accused to instruct an advocate, failing which – no one can be compelled to have legal representation (European Convention 1950 Art 6.3(c) – ‘the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused’ (s 38(3)). Then s 38(4) applies, and requires the court to appoint an advocate to cross-examine:
(4)If the court decides that it is necessary in the interests of justice for the witness to be so cross-examined, the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.
Advocate not responsible to the respondent
Section 38(5) provides that: ‘A person so appointed shall not be responsible to the accused.’ Provision is made under YJCEA 1999 s 40 for payment of ‘the proper fee or costs of a legal representative appointed under s 38(4)… and any expenses properly incurred in providing such a person with evidence or other material in connection with his appointment’ from public funds.
European Convention 1950 Art 6.3(d) gives a defendant in criminal proceedings the right to examine ‘witnesses against him’; though this need not be face to face (R v Lubemba & Ors  EWCA (Crim) 2064,  1 WLR 157). It is likely that analogous rules in relation to Art 6.3 would apply in domestic abuse proceedings under Family Law Act 1996 Pt 4 in view of the seriousness of some of the applications which are equivalent to, and sometimes of the same facts as, criminal charges.
Before the 2017 general election the government proposed a scheme similar to this as part of Prison and Courts Bill. Clause 47 of that bill proposed a variety of amendments to Matrimonial and Family Proceedings Act 1984 to cover the proposal. It was more limited than that needed (see below). It was lost when the election was called and has not so far been revived.
A voluntary scheme
For the time-being, to assist complainants and the courts, a scheme of free (pro bono) advocates could surely be set up. Financial assistance will be sought for the expenses of such advocates. Thus far, neither Resolution (a group of family lawyers, mostly solicitors) nor Family Law Bar Association will directly help. Both groups say the Government must take action, though FLBA may help with publicising any voluntary scheme to its members but no more.
If we wait for the government, especially for a Tory Government, we could wait for ever. Most new schemes to help people are started by volunteers. If we waited for the government there might be only fee-paying schools and few hospitals or libraries. Reforming Labour governments have helped to ease that: the NHS, state education and legal aid, freedom to roam and human rights; even YJCEA 1999 itself.
Resolution and FLBA probably think that a scheme proposed by the government (in line with YJ s 38(4) and funded as under s 40) will solve the problem; and that therefore we should wait till the Government get on with it as they promised a year ago. That is all very well. The Government are doing nothing at present; and judges such as Hayden and Peter Jackson JJ are having to make do as they watch witnesses and parties being further abused in cross-examination. In Re A (A Minor: Fact Finding; Unrepresented Party) (above), Hayden J explained the position:
 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.
Over ten years ago in H v L and R (above) Roderic Wood J pointed out the extent to which family proceedings lag behind criminal cases in protecting the vulnerable witness from re-abuse. He was lucky enough to secure help from the Attorney-General in that case. That will not happen again. Under this scheme a small number of advocates are being asked to help courts, if judges in the small number of cases which apply, ask for assistance for an unrepresented alleged abuser to cross-examine and alleged victim. This may also have the advantage of providing the Government with a prototype.
26 December 2017
(1)This section applies where, in a case where neither of sections 34 and 35 operates to prevent an accused in any criminal proceedings from cross-examining a witness in person—
(a)the prosecutor makes an application for the court to give a direction under this section in relation to the witness, or
(b)the court of its own motion raises the issue whether such a direction should be given.
(2)If it appears to the court—
(a)that the quality of evidence given by the witness on cross-examination—
(i)is likely to be diminished if the cross-examination (or further cross-examination) is conducted by the accused in person, and
(ii)would be likely to be improved if a direction were given under this section, and
(b)that it would not be contrary to the interests of justice to give such a direction,
the court may give a direction prohibiting the accused from cross-examining (or further cross-examining) the witness in person.
 In H v L and R (below) Roderic Wood J took the view that in civil proceedings a right to cross-examine existed thanks to Art 6.3(d): ‘… Although, in principle, Art 6(3)(d) permits a defendant the right to cross-examine in person such a complainant, that particular right was circumscribed by s 34A of the Criminal Justice Act 1988, which forbids a defendant in a criminal trial from cross-examining a child witness personally. A further inhibition on such a practice was put in place by s 35 of the Youth Justice and Criminal Evidence Act 1999 (the 1999 Act).’