Last week Justice Ministers told MPs that they want urgently to ban perpetrators of domestic abuse from directly cross-examining their victims in the Family Courts to prevent the distress and intimidation this causes. The move has followed extensive coverage of the issue by the Guardian newspaper in recent months, prompting a question from Labour MP Peter Kyle who raised the issue in the House of Commons. The President of the Family Division of the High Court, Sir James Munby has also been outspoken about the need for reform for some time.

Currently, there is no legislation preventing the direct cross-examination of victims of domestic violence by the perpetrator in Family Court cases, such as those relating to disputes about arrangements for children or cases where the victim is seeking an injunction against the perpetrator to protect them from abuse. This is in contrast to Criminal proceedings, where the Youth Justice and Criminal Evidence Act 1999 explicitly prohibits the direct cross-examination of complainants by the accused in sexual offences cases and gives Judges wide discretion to prevent it in other cases.

It certainly seems absurd that there is an automatic ban of direct cross-examination when allegations of sexual abuse are made in Criminal Courts, but not when identical allegations are made in Family Courts. Indeed, in Family cases even where one party has already been convicted of offences relating to domestic abuse against the other, they can potentially question their victim directly in court if unrepresented.

From the press coverage of this issue, one might get the sense that Family Judges currently have no power to prevent direct cross-examination of alleged victims of domestic abuse. However, this is not the case. The Family Procedure Rules 2010 give Judges wide powers to control how parties give evidence. For example, Judges could stipulate that the alleged perpetrator direct their questions towards them and the Judge would then ask the questions of the alleged victim to prevent direct questioning. Oral evidence can also be directed to be given behind a screen or via video-link. Of course, Judges must ensure that cross-examination is not restricted in such a way so as to breach the questioning party’s right to a fair trial under Article 6 of the European Convention on Human Rights, but it is difficult to see how these simple devices would do so.

So why has this issue become such a widespread problem that now seems to have forced the government into action?

As a result of changes to legal aid from April 2013, there has been a significant rise in people representing themselves in Family proceedings. According to Ministry of Justice statistics, approximately 80% of private Family cases now involve at least one party who is not legally represented, compared to 50% in 2011, and in nearly 35% of cases neither party is legally represented, up from 10% in 2011. Not all Family cases will involve allegations of domestic violence, but clearly there are a huge number of cases with the potential problem of direct cross-examination of the alleged victim by the alleged perpetrator.

Litigants in Person may well be unaware of the measures that can be requested to minimise the potential distress caused. Even those Litigants in Person who do request that the Court make special arrangements may often find that the Court has not put them in place for the hearing. It is often a struggle even for solicitors to arrange facilities, such as video links, in the Family Courts.

It is therefore often left solely to Judges to pro-actively manage the cross-examination of alleged victims of domestic violence and some responsibility for the problem must lay with Judges. They are often overworked, commonly only first reading case papers on the morning of a hearing, and the accusation from some quarters that they do not properly understand the effects of domestic abuse is a grossly unfair generalisation, but the accounts of domestic abuse victims who have been through the system cannot be ignored. This is why legislation appears necessary to address the problem and force the issue to the forefront of all Family Judges’ minds, even if this means simply codifying the powers they already have.

For more information please contact Joseph Mulhern.