Sections 65 and 66 Domestic Abuse Act 2021 (DA 2021) introduce measures to stop an alleged domestic abuse perpetrator from cross-examining a party alleging abuse, and vice versa, in both family and civil court proceedings. This applies where a party is acting ‘in person’ without a legal representative, to stop the further trauma of interactions in court. Instead the court must consider the appointment of a legal practitioner to cross-examine each party which will be paid from central funds. You can read the statutory guidance which has now been published by the Ministry of Justice (MOJ)  relating to the prohibition of cross examination on the MOJ website.  

As a result of these changes a Family Procedure Rules 2010 (FPR 2010) Practice Direction update has been issued. The update introduces a new Practice Direction 3AB which sets out the circumstances in which the prohibition is triggered, how the family court should consider satisfactory alternatives to cross-examination in person, and where there are no alternatives, how the court may appoint a qualified legal representative to cross-examine. You can read the FPR 2010 update which will come into effect on 21 July. It is anticipated section 65 and 66 DA 2021 will come into effect on this same date but a commencement statutory instrument has not yet been issued.

Prohibition on cross-examination: guidance where no legal representation available 
Since 21 July 2022 there has been a ban on cross examination in cases involving domestic abuse, where the party putting the questions is a litigant in person (LiP). In these cases the court can appoint a paid for qualified legal representative (QLR), to represent the LiP.

There has been a shortage of QLRs to take on this work. In Re: Z (Prohibition on Cross-examination: No QLR) [2024] EWFC 22 the President of the Family Division has given guidance as to what should happen where no QLR can be found.

The President made clear the lack of QLR does not automatically mean the Judge has to conduct the questioning. His previous guidance in his July 2023 ‘View from the President’s Chambers’  said 28 days should be allowed to find a QLR and if not found, the case listed for directions. Alternate options could be further adjourning to find a QLR, allowing a party to engage their own advocate, reviewing the need for the hearing or the cross examination itself and considering the court doing it.

In this case he decided to ask the questions himself as there was little prospect of finding a QLR. Whilst PD3AB of Family Procedure Rules provided that this was not a ‘satisfactory alternative’ this did not stop the court from doing it in the interests of justice. A Judge should however avoid talk of ‘cross examining’ but approach it as asking the questions the other party wishes to be asked in a fair way. It was a balancing act.

The judgement also gives some practical tips in theses cases (at para 41) :

  • A QLR could attend a prior ‘grounds rules’ hearing remotely if necessary
  • The default for the full hearing should be for the QLR to be in attendance in person (not remotely)
  • The party should submit a clear statement as to the allegations/facts /findings they wish to establish
  • The party should file a written list of questions to the QLR, or court if no QLR, but not the witness / other party. This didn’t prevent additional questions at the hearing if needed