Case Law Update: Re Z (Prohibition on Cross-Examination: No QLR) [2024] EWFC 22

Introduction

Sir Andrew McFarlane (President of the Family division) has handed down a very helpful and hotly anticipated judgment regarding the approach the court should adopt when it has directed a QLR be appointed for a party but no QLR has been found. Sir Andrew McFarlane took the opportunity to provide this judgment following a substantive judgment given at the conclusion of a fact-finding hearing.

This case law update is provided to assist practitioners with providing a summary of this case. However, I would greatly encourage all family law practitioners to read the judgment in full and ensure they have a copy to hand in cases where the appointment or discharging of a QLR is likely to be an issue.

Part 4B of the Matrimonial and Family Proceedings Act 1984 (MFPA) was inserted by s65 of the Domestic Abuse Act 2021, and establishes the statutory scheme for the appointment of QLR’s in family proceedings that commenced after 21 July 2022. Sir Andrew McFarlane notes the supporting Statutory Guidance, Family Procedure Rules, and provides a link to the Government website regarding the QLR scheme. His judgment provides a helpful summary of the scheme and its aims at paragraphs 4-20.

Sir Andrew McFarlane goes on to explain the decision that he faced in the case, namely what to do when a QLR is required, but none is available. He notes that many judges and magistrates are facing this issue on a daily basis.

Options Before the Court Where No QLR is Available

Practitioners may recall that in a “View from the President’s Chambers” in June 2023, the President suggested that ‘if no QLR is found within 28 days, the court should list the case for directions and direct that some summary information is provided by HMCTS about the difficulties that have been encountered.’ The President mentions this guidance in his judgment at paragraph 22, and also notes that ‘Cases should not be permitted to drift whilst an open-ended search for a QLR is undertaken” [22].

The President notes that the principal options facing a court at the directions stage, following that 28 days period are likely to be (but not exhaustively):

a) A further adjournment in the hope that a QLR may be found;

b) An adjournment to allow one or both parties to engage their own advocate;

c) Reviewing the need for the vulnerable party to give oral evidence and be cross-examined. This will include reviewing the need for there to be a fact-finding hearing in the proceedings;

d) Considering any other alternative means of avoiding in person cross-examination between the relevant parties;

e) The court itself taking on the task of asking questions in place of the in person party [23].

Importantly, he notes that ‘It does not follow that, if no QLR is available, the court is automatically required to conduct the questioning itself. It is important that all possible alternative options are reviewed at that point in the proceedings’ [23].

The President continues by stating: “When considering the options, and whether the court should take on the questioning, the court will take account of PD3AB paragraph 5.3 which states that: 'a satisfactory alternative to cross-examination in person does not include the court itself conducting the cross-examination on behalf of a party'. The validity of that statement is unlikely to be controversial in the eyes of judges and magistrates. Indeed, the negative aspects of questioning by the court must have been prominent in the thinking in Parliament when the QLR process was brought into law by the 2021 Act” [24].

Interestingly, whilst Practice Direction 3AB paragraph 3.5 states that ‘a satisfactory alternative to cross-examination in person does not include the court itself conducting the cross-examination on behalf of a party’, this provision is not black-letter law. Therefore, the Practice Direction does not prevent the court undertaking the task of cross-examination if the court considers that, in the interests of justice, it must nevertheless do so.

As practitioners well know, the need for the court to deal 'justly' with cases is not confined simply to the need to act in the interests of justice when appointing a QLR; it is a requirement that pervades every step that the court may take throughout any proceedings in order to meet the 'overriding objective' of the FPR 2010.

Ultimately, if the court decides to abandon further attempts to appoint a QLR, the previous direction appointing one must be discharged. The President also notes that, as a matter of good practice, the reasons for the discharge should be very shortly recorded on the face of the order and/or in a short judgment.

Questioning by the Court

The President at paragraphs 28 to 40 goes on to outline the approach regarding questioning by the court, noting in particular his own experience with doing so in the case before him.

“It may, at least in one sense, be reassuring to those judges, magistrates and legal advisers who regularly have to do so, to record that, in the case before me, I found the task of asking the questions to be a particularly burdensome, unnatural and tricky one. As neither party was represented, as the judge I found myself first of all asking questions to tease out further details 'in chief', as it were, from the first of the parties to give evidence before then putting to them most of the questions that the other party wished to have put. The process was then reversed when the other party entered the witness box. Over the course of a full court day, I therefore ended up asking all of the questions.

I have used the word 'tricky' to describe the process as, when undertaking questioning, 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 that the judge does not enter the arena or be seen in any way to be promoting the case of one side or the other.” [28-29].

Helpfully, the President sets out in some detail the leading authorities on the questioning of witnesses by judges, including Serafin v Malkiewicz [2020] UKSC 23 and the decision of Hayden J in PS v BP [2018] EWHC 1987 (Fam).  Practitioners and judges alike may find that particular section of the President’s judgment useful when preparing written and oral arguments or judgments on this issue.

The President’s Practical Points

The President concludes at paragraphs 41 to 42 by providing his own practical factors that he would encourage judges to consider.

“Finally, I would offer the following practical points for courts to consider either when appointing a QLR or when preparing to put questions itself:

a) 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;

b) 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;

c) 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;

d) 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;

In conclusion, 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 [41-42].

Conclusion

As the lack of QLR’s is unlikely to be resolved in the near future, this helpful judgment is likely to be of assistance to practitioners and judges alike for some time. Ultimately, on the ground one can see that the issue of proper renumeration for the role of QLR is likely to be one of the key factors that impacts the availability of advocates willing to fulfil that role.

To read the President’s judgment in full, please see the following link: https://www.bailii.org/ew/cases/EWFC/HCJ/2024/22.html