By Family Law Week, 23 February 2017
The Government has published a Prisons and Courts Bill which, amongst other matters, seeks to put an end to domestic violence victims being cross-examined by their alleged attackers in the family courts, preventing what the Justice Secretary has described as a “humiliating and appalling” practice. This follows an urgent review she commissioned last month.
A fact sheet, published by the Ministry Of Justice and explaining the changes states:
“The proposed provisions will allow courts to put an end to the face-to-face crossexamination of vulnerable witnesses in the family courts, so that people who need to be heard are not afraid of speaking out.
For example, a party to family proceedings who has been convicted of committing an assault against the witness will not be allowed to put questions to that witness directly. The court must consider if there is a satisfactory alternative way of obtaining the evidence. If the court concludes that there is not, then it may appoint a publicly-funded legal representative to undertake the cross-examination.
The provisions will have the practical effect of:
a. introducing a blanket ban on cross-examination in person in certain specified circumstances – for example, where the would-be questioner has been convicted of committing a violent or sexual offence against the witness;
b. giving the court a discretion to prohibit such cross-examination in other specified circumstances – for example, where the court is satisfied that such cross-examination would cause significant distress to the witness;
c. requiring the court to consider alternatives to cross-examination where a prohibition on cross-examination in person applies;
d. giving the court a power in specified circumstances to appoint a funded legal representative to ask questions on behalf of a party who is prohibited from cross-examining in person; and
e. making provision for the public funding of such legal representatives.”
The Bill inserts into the Matrimonial and Family Proceedings Act 1984 a new Part 4B entitled ‘Family Proceedings: Prohibition of Cross-examination in Person’. For those provisions, click here.
The Bill received its First Reading on 23 February 2017 and will receive its Second Reading on a date to be appointed.
The Family Procedure Rule Committee has also launched a consultation in respect of a draft Practice Direction 3AA relating to the participation in proceedings of, and giving evidence by vulnerable persons. For more details, click here.
The Ministry of Justice has published a research study exploring how the family judiciary manage cases with the cross-examination of vulnerable or intimidated witnesses by alleged perpetrators of abuse, and establishing what, if any, further provisions could be considered to support them in doing so. For that document, click here.