In the Absence of a QLR

A Qualified Legal Representative (‘QLR’) is a person appointed to cross-examine another party where one party is a litigant in person and there are allegations of domestic abuse. The assistant of a QLR prevents the alleged perpetrator from being able to cross-examine the alleged victim as well as preventing alleged victims from having to ask questions to the alleged perpetrator. This came into force after section 65 of the Domestic Abuse Act 2021 introduced new protections including a ban on direct cross-examination in domestic abuse scenarios. This is now contained under Part 4B of the Matrimonial and Family Proceedings Act 1984 (‘MFPA’) and applies to proceedings commenced on or after 21 July 2022. The MFPA contains automatic (section 31R, 31S and 31T) as well as discretionary (section 31U and 31V) grounds for prohibition of cross-examination.

A QLR is defined by section 31W(8)(b) of the MFPA as a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience (within the meaning of that Act) in family proceedings. Practice Direction (‘PD’) 3AB of the Family Procedure Rules 2010 (‘FPR’), paragraph 5.3 states “A satisfactory alternative means to cross-examination in person does not include the court itself conducting the cross-examination on behalf of a party.”

QLRs are funded by the government, are low waged and do not allow for travel expenses. QLRs are available solely for the purpose of cross-examination, they cannot advise a party and they do not have legal professional privilege. It is well known that there is a shortage of QLRs. This shortage has caused adjournments, wasted costs and a need for guidance in cases where a QLR is not available.

A View from The President’s Chambers: 10 July 2023

The Right Honourable Sir Andrew McFarlane (President of the Family Division) acknowledges the “frequent and widespread” difficulty of finding a sufficient number of advocates to act as a QLR in cases. In paragraph 17 he suggests that where a QLR is not found within 28 days, the court should list for directions and direct that some summary information is provided by HMCTS about the difficulties, however it is a matter for the individual judge or magistrates to decide in each individual case. Where a QLR is not found within 28 days, he notes that courts should apply the overriding objective laid down in the FPR to deal with cases ‘expeditiously and fairly’, ‘dealing with a case in ways which are proportionate to the nature, importance and complexity of the issues’ and ‘ensuring parties are on an equal footing’. In paragraph 19 he states that terminating the appointment of a QLR allows an opportunity to explore other options such as instructing an advocate. If a QLR is discharged, short reasons for doing so should be recorded in the court order.

The Judgment: Re Z (Prohibition on Cross-examination: No QLR) [2024] EWFC 22, [2024] All ER (D) 99 (Feb)

In this instance, the court directed for a QLR to be appointed in accordance with Part 4B of the Matrimonial and Family Proceedings Act 1984, after more than 120 different communications by email or telephone in an attempt to find a QLR, none were available. [3] The Judge considered a further adjournment but knew it was unlikely a QLR would be found. Therefore, the Judge decided to question the two parties in place of a QLR.

Despite PD 3AB of the FPR stating the court conducting cross-examination on behalf of a party is not a satisfactory alternative to a QLR, it is an option to be considered in the interests of justice under common law. This outcome enables cases to continue without delay. However, there is a balance to be struck. The Judge remarked the difficulties of asking the questions to both parties. [28] In K and L (Children: Fairness of Hearing) [2023] EWCA Civ 686 where, during the cross-examination of a party by the opposing advocate, the judge asked over 200 questions and ‘in effect took over the cross-examination’. The consequence for the overall fairness of the hearing was described by Baker LJ:

“By intervening on such a scale, and in such a challenging manner, the judge ran the risk (in Jonathan Parker LJ’s phrase in The Mayor and Burgesses of the London Borough of Southwark v Maamefowaa Kofi-Adu [2006] EWCA Civ 281 at paragraph 146) of so hampering her ability properly to evaluate and weigh the evidence before her as to impair her judgment and thereby render the trial unfair.” [54]

The President gave guidance in scenarios where there is not a QLR available:

  • “The Court has to tread a narrow path between, on the one side, ensuring the witness’ evidence is adequately tested by the points that the other party wishes to raise, but, on the other, ensuring the judge does not enter the arena or be seen in any way to be promoting the case of one side or the other.” [29]

 

  • “A further need for caution may arise from the need for the judge to avoid taking an important point on behalf of one party which that party has not themselves raised.” [34]

 

  • “Fairness should require the Court to be very open with the parties as to the process to be adopted by explaining what is to happen, step by step, at the start in straight forward terms.” [35]

 

  • To “put the party’s case ‘fully, properly and fairly’. This requirement, alongside the countervailing one for the court to avoid entering the arena, is what makes the judicial task a tricky one… the court must not edit, neutralise, or otherwise defuse the questions that a party seeks to have asked so as to minimise their potential value.” [38]

 

The President also gave some practical points to consider when appointing a QLR or not:

  • “Whilst there is value in the QLR attending court for the ground rules hearing so that they may meet the party on whose behalf they will be asking questions, where this is impractical, and where holding the hearing remotely means that a QLR who could not otherwise act can be appointed, it should be acceptable for the QLR to attend the ground rules hearing remotely;

 

  • The default position for the full hearing should be for the QLR to be in attendance at court, rather than joining remotely, as the overall effectiveness and fairness of the process is likely to be diminished if they are not in the courtroom;

 

  • In all cases (whether there is a QLR or not) at the ground rules hearing, or earlier, the court should direct that the prohibited party should submit a clear statement shortly stating the allegations, facts or findings that they seek to establish;

 

  • In all cases, the prohibited party should be required to file a written list of the questions that they wish to have asked prior to the main hearing. The list should go to the QLR, or to the court if there is no QLR, but not to the witness or other parties. This process should not prevent the prohibited party from identifying additional questions that may arise during the hearing.” [41]

 

Sir Andrew McFarlane concluded:

“Whilst it is to be hoped that, in time, the continued training programme and the ability to claim travel expenses will increase the availability of QLRs, there will inevitably remain some cases where there is no alternative but for the court to ask the questions itself. Unsatisfactory though that process plainly is, in such cases it will be necessary in order to deliver a just, fair and timely conclusion to proceedings. Where that is the case, the advice in this judgment is intended to assist the court in navigating the tricky path between ensuring that the opposing case is put fully, fairly and properly, but doing so without entering the arena.” [42]

 

Holly Parker

Trinity Chambers

4 April 2024