Re Z (Prohibition on Cross-examination: No QLR) [2024] EWFC 229 February 2024

Published: 15/02/2024 07:33

Sir Andrew McFarlane, President of the Family Division. Judgment considering the approach that a judge or magistrate sitting in the Family Court should adopt when the court has directed that a Qualified Legal Representative (QLR) should be appointed for a party in circumstances where no QLR was available. The advice in the judgment is intended to assist the court in navigating the tricky path between ensuring that the opposing case is put fairly, fully, and properly, but doing so without entering the arena; [42]. A summary of the description of the QLR process can be found in paragraphs 4–20.

Where the court has not succeeded in appointing a QLR, it does not follow that the court is automatically required to conduct the questioning itself. Rather, it is important that all possible alternatives are considered at that stage in the proceedings. This includes adjourning to allow one or both parties to engage their own advocate, reviewing the need for the vulnerable party to give oral evidence and be cross-examined (including the need for there to be a fact-finding hearing); a further adjournment in the hope that a QLR is found, etc; [23]. Although PD 3AB, para 5.3 states that ‘a satisfactory alternative to cross-examination in person does not include the court itself conducting the cross-examination on behalf of a party’, this provision is not black-letter law. Thus, as a matter of law, the Practice Direction does not prevent the court undertaking the task if it considers that, in the interests of justice, it must nevertheless do so.

The requirement for the court to deal with cases justly is not confined to the appointment of the QLR alone but pervades every step that the court may take throughout any proceedings to meet the overriding objective of FPR 2010. In the context of a decision on how to proceed in the absence of a QLR, FPR 1.1(2)(a), (b) and (c) are likely to be of particular relevance. 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, the reasons for discharging the direction should be briefly recorded on the order/and or in short judgment.

Where a judge is required to ask questions on behalf of one or both parties, because there is no other means of doing so, the judge must guard against being drawn into the arena so as to lose objectivity and diminish their ability to properly evaluate and weigh the evidence. There is a further need for the judge to avoid taking an important point on behalf of one party which that party has not themselves raised. It is expected that a judge may identify a point that had not been raised by either party but requires clarification. As long as the manner in which the judge questions the party or parties is fair, judges should not feel that they are prevented from doing so.

The lodestar for a judge, magistrate or legal advisor who takes on the task of asking questions on behalf of an unrepresented party in these circumstances must be fairness; [39]–[40]. This requirement also includes the judge putting the party’s case ‘fully, properly and fairly’; [38]. Fairness requires the court to be very open with the parties as to the process that is going to be adopted by explaining what is to happen, step by step, at the start of the straightforward terms; [35]. One way to enhance the overall fairness of the process is for the judge to retain a ‘detached position’ and resist the temptation to move into full cross-examination mode if they sense that the witness may not be telling the truth; [36].

The term ‘cross-examination’ should be deliberately avoided when describing the court asking questions and instead this should be referred to as the court ‘asking questions that the other party wishes to have asked’ or a similar phrase. The essential difference is that by asking questions the court ‘is merely acting as a channel of communication and not as an advocate seeking a particular answer to a question, or more generally, a particular outcome to the case’; [36].

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