‘I’ve heard it’s not well organised’

‘You’ll make no money’

‘It seems like more work than it’s worth’

These are the usual comments I receive when I tell people I undertake work as a Qualified Legal Representative (QLR). Still a relatively new scheme, the Family Court has been long overdue for its equivalent of section 38 advocates in criminal proceedings. Essentially, an independent advocate to undertake cross-examination on behalf of a party in circumstances where the court has determined it is not appropriate for that party to cross-examine the witness themselves.

The classic example would be, in my practice area of financial remedy proceedings, where there are allegations or cross allegations of domestic abuse and a party, perhaps the husband, is a litigant in person – whether for personal or, more likely, monetary reasons – and the matter requires a final hearing. Litigants in person were certainly on the rise at last count in 2016, and on the ground it looks like the situation has become even more dire.

While we wait to see whether legal aid will ever be made workable again to the point where this hypothetical husband could obtain a solicitor to represent him consistently throughout the proceedings, the next best thing would appear to be the husband having an advocate at the final hearing to cross-examine the wife on his behalf. This is the function of the QLR.

In days gone by, husband would have had to formulate his questions for wife ahead of time and file these with the court, so the judge could put the questions on husband’s behalf. This was fraught with issues, including:

• previous judges forgetting to direct this specifically;
• litigants in person failing to provide their questions ahead of time and needing additional time on day 1 of the final hearing to draft their questions;
• litigants in person failing to provide their questions ahead of time and some judges effectively allowing them to half-way cross-examine, in that they were permitted to conduct questioning with the judge interrupting any improper question;
• litigants in person mistakenly filing and serving their questions and putting the other party (or parties) in the awkward ethical position of having been given detailed notes of the cross-examination to come; and
• judges being put in the rather difficult position (despite the quasi inquisitorial nature of the proceedings) of having to wear both the ‘tribunal’ hat and the ‘representative’ hat, and conduct cross-examination whilst also carefully considering the evidence being tendered during the same.

I was an early recruit to the scheme, which is open to solicitors and barristers. Having been appropriately qualified in advocacy and vulnerable witness handling, and having a current practising certificate, advocates register their interest with HMCTS and specify the courts they would be available to work at. Then the emails will begin arriving, indicating when and where a QLR might be needed, if the advocates could please make contact. Typically, the PTR has already happened, but if not you may be asked to also attend that.

There has been some bleed over in that it remains to be seen how HMCTS are handling this information internally. Anecdotally, there are complaints of being contacted by courts not indicated in the registration documents. I was surprised myself one day as counsel based in Manchester and the North West to be contacted by the Family Court at Bristol, having never registered with Bristol and indeed being quite doubtful as to whether I could find a podcast entertaining enough to sustain me through that particular 6–7 hour round trip. Having heard the pushback from advocates about this point, the issue is currently being considered by HMCTS’s Family Jurisdictional Support.

The initial request for a QLR will usually be bare bones, and it is on the respective advocate (or their clerk) to make contact to obtain details and party names to ensure conflict checks can be carried out, and to ensure the instruction is within the advocate’s competency. The latter can pose difficulties in that many members of court staff will not be able to provide a neat summary of the case in the way, say, an instructing solicitor would when contacting clerks in chambers to secure appropriate counsel for a hearing. In reality, it is a matter of ensuring there are no conflicts or diary clashes and then becoming appointed, to obtain the papers later.

In the scheme’s early days, there were issues of QLRs not being provided with details or papers in adequate time and finding out, quite late in the day, that the case was outwith their experience threshold or practice range. However, I am finding that the court is now wise to the perils of this and it is now the norm for QLR appointment orders to include the following:

• appointment of the named individual;
• the court staff/solicitors in the case must send the bundle used at the ground rules hearing/PTR within 3 days of appointment;1
• provision that the court-appointed qualified legal representative must notify the court as soon as possible if they are subsequently unable to accept the court appointment; and
• the court staff/solicitors in the case must send the court bundle to the qualified legal representative appointed to conduct the cross-examination 7 days before the hearing.

When complied with properly, the above allows the QLR sufficient time to become familiar with the case and whether there is any risk they are not an appropriate advocate.

There is an expectation that QLRs provide position statements (see Section 3.3 of statutory guidance, although there is usually little to address given the nature of the role. I tend to focus on issues relevant to effective hearing management (like an agreed timetable) and provide a short summary of my party’s case. I say ‘my party’ rather than ‘my client’ as QLRs do not have free-ranging remit to conduct the hearing on behalf of the party they are appointed for, they may make not make submissions (Section 2.1), and strictly speaking you have no client relationship with them.

You then have a noting brief up until your party gives evidence; in the above scenario it may be hypothetical husband who gives evidence first, so he is tendered into evidence by the court and cross-examined accordingly while you observe. After husband’s evidence you may wish to arrange a quick chat with husband as to how that informs your cross-examination to come. As at Section 2.1 above, you are not taking instructions formally, but you will need to have a discussion with husband to ensure cross-examination is focused accordingly in light of the evidence to date.

Then once wife is tendered into evidence and chief is complete, you enter the fray and cross-examine. Once wife’s evidence is over, unless you are appointed to cross-examine any other witness, you are discharged by the court and may go on your merry way as everyone else continues without you. It does feel strange, cross-examining only and then leaving, usually partway through the final hearing, like you’re leaving a lesson early to go to the dentist.

Except an awful lot does get achieved by cross-examination only. Advocates will know what I mean when I refer to the magic of cross-examination. Litigants in person, frustrated and scared, usually not knowing where to begin to present their case properly, get to watch someone on their behalf put their case and attack any obstacles. This hands the litigant in person the building blocks for when they come to make their own closing submissions, and streamlines the process for the court. It also makes going to a final hearing less terrifying for the litigant in person. When I think about how daunted I felt when I cross-examined someone for the first time as a baby barrister, even after years of training (and years of desperately wanting to be allowed to), I feel immensely sorry for someone thrust into that role. Particularly so, and it bears repeating, when so many people are left in the position because legal aid has been gutted.

The pay is indeed modest, especially compared to private fees; see Schedule to Prohibition of Cross-Examination in Person (Fees of Court-Appointed Qualified Legal Representatives) Regulations 2022 for detail. I have already told my loved ones they can expect more handmade gifts this year. Ultimately, it will come down to an individual advocate’s practice needs including financial considerations.

I suppose then the first two comments are fair enough: the scheme could be better organised and it isn’t a huge money maker. But I disagree wholeheartedly that the QLR scheme isn’t worthwhile. I consider it a worthy scheme, and a desperately needed stopgap during a cost of living crisis when it would appear litigants in person are more common than ever.

If you would like to become a QLR, the Law Society has a helpful page on how to register.