Prisons and Courts Bill

Written evidence submitted by the Family Justice Council (PCB 21)

1. The primary role of the Family Justice Council (FJC) is to promote an inter-disciplinary approach to family justice and to monitor how effectively the family justice system meets the needs of its users. The Family Justice Council is an advisory Non Departmental Public Body sponsored by the Judicial Office. It is an inter‐disciplinary body responsible for providing independent expert advice on the family justice system to Government, principally through the Family Justice Board. The Council is chaired by the President of the Family Division, Sir James Munby. The Council arrives at its views collectively, after discussion and debate, as such they do not, necessarily, reflect the views of its Chairman. The Council’s membership reflects all the key professional groups working in the family justice system and includes: judges, lawyers, social workers, Cafcass officers, health professionals and academics.

2. The FJC has considered cl 47 of the Prison and Courts Bill 2016-17, which proposes to insert a new Part 4B in the Matrimonial and Family Proceedings Act 1984 concerning arrangements to prevent abusive direct cross-examination in family proceedings.

3. The FJC notes that the proposed new ss.31R-31T of the Matrimonial and Family Proceedings Act are modelled on ss.34-36 of the Youth Justice and Criminal Evidence Act 1999, in that they provide for a category of cases in which direct cross-examination is automatically prohibited, and a further category of cases in which the court is given a discretion as to whether to prohibit direct cross-examination. The FJC is concerned, however, that the scope of cases in which the automatic prohibition will apply is overly narrow and the scope of cases in which discretion must be exercised is overly broad, to the potential detriment of the efficient administration of justice.

4. Whenever a court is expected to exercise discretion under s.31T, there will be inevitable delays in proceedings as the court must determine whether the conditions for the exercise of discretion are satisfied, and if so, must then determine whether satisfactory alternatives are available, and if not, must then give the party time to arrange for their own legal representation, and if that does not occur, must then consider making an appointment of legal representation. By contrast, when there is an automatic prohibition, attention can immediately turn to alternatives, and this stage can be dealt with more quickly because it can be foreseen and addressed in advance.

5. Recent research conducted by the Ministry of Justice [1] also indicates that:

a. Judges may lack sufficient information accurately to assess whether the discretion to prohibit cross-examination ought to be exercised, especially where both parties are in person;

b. There is a wide variety of judicial approaches to the issue of potentially abusive direct cross-examination and widely varying levels of judicial confidence concerning the exercise of discretion in these circumstances;

c. Judges have already identified an unmet need for clearer guidance on case management and more specific training in relation to the issue of direct cross-examination and ‘appropriate’ alternatives.

6. The FJC considers that a wide area of discretion will create additional and unwelcome pressures for family judges who are already required to manage increasing numbers of litigants in person and time pressures in their caseloads. There may consequently be a tendency for the discretion to be under-used, due to judicial concerns about potential delays, or lack of information or confidence in exercising the discretion. It is also likely to generate further training demands and significant inconsistencies between courts and individual judges.

7. Although statistics are regrettably not available to determine the exact size of the category, experience indicates that many cases will lack charges or convictions for a domestic violence offence or a current on-notice protective injunction as required by ss.31R and 31S for the automatic prohibition on cross-examination to apply. Moreover, an on-notice protective injunction may be granted after relatively limited inquiry, compared, for example, to a fact-finding hearing in family proceedings resulting in positive findings, which will not have the effect of triggering an automatic prohibition on direct cross-examination.

8. The FJC submits that a straightforward, workable, consistent approach is required which achieves the aims of the reform while minimising pressures on family judges and the protraction of proceedings. This would be better provided for by expanding the ambit of the automatic prohibition on cross-examination to include:

a. Any family proceedings in which contested allegations of domestic abuse are being determined; and

b. Any family proceedings in which a party has been found (whether in civil or criminal proceedings) to have perpetrated, or has admitted to perpetrating domestic abuse against a witness in the family proceedings.

April 2017


[1] Natalie Corbett and Amy Summerfield, Alleged perpetrators of abuse as litigants in person in private family law: The cross-examination of vulnerable and intimidated witnesses (Ministry of Justice Analytical Services, 2017).

 

Prepared 18th April 2017