On 9th February 2024, the President of the Family Division, Sir Andrew McFarlane handed down a judgment that considers the approach that should be taken when a Qualified Legal Representative (QLR) has been directed to be appointed for a party, but no QLR can be found.
The case can be found here
What is a QLR?
A QLR is a lawyer who is appointed to conduct cross-examination on behalf of a party who is prohibited from cross-examining another party. The judgment helpfully outlines who a QLR may be:
- 18. A QLR is defined by MFPA 1984, s 31W(8)(b) 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”.
- 19. For a QLR to be a ‘qualified’ legal representative, they must be a barrister, a solicitor or a ‘CILEX Practitioner’ (a CILEX Litigator and Advocate) [CILEX is the Chartered Institute of Legal Executives]. In addition, the statutory guidance requires that:
‘All court-appointed qualified legal representatives must have a current practising certificate and have undertaken advocacy and vulnerable witness training (or have made a commitment to attend such training within six months of having registered on the court list of qualified legal representatives) that is provided or approved by their professional body. They must also have the necessary skills and experience in cross-examining vulnerable witnesses in contested hearings. Qualified legal representatives with additional specialist domestic abuse training on matters such as coercive and controlling behaviour, economic abuse, psychological abuse and post-separation abuse are also eligible to undertake this work.’
In cases where there are two litigants in person, it is possible for the court to appoint a QLR for each party. Importantly, the QLRs do not represent the party or advise them as to their case. The QLR is appointed only to cross-examine the witnesses as per the Court’s direction.
A QLR can only be appointed in proceedings that started after 21 July 2022.
Why is a QLR necessary?
QLRs are necessary where one party has been prohibited from cross-examining another party. That can be through an automatic prohibition or a discretionary prohibition.
Paragraphs 4 to 14 of the judgement outline the changes to the law in detail, including the insertions by the Domestic Abuse Act 2021.
In short, three situations will lead to an automatic prohibition under S31R Matrimonial and Family Proceedings Act 1984:
- Victims of criminal offences (including cautions),
- Where a person is protected by injunctions, and
- Specified evidence of domestic abuse.
Where none of these apply, cross-examination can be prohibited where it appears it would affect the quality of the evidence or cause the party significant distress; and where prohibition would not be contrary to the interests of justice. This is the discretionary prohibition pursuant to S31U MFPA 1984.
In cases where a party – or both parties – are representing themselves, there needs to be a way for them to challenge the other party’s evidence. That is where QLRs come in; they are court-appointed to cross-examine on behalf of one party.
What to do if no QLR is available?
Unfortunately, there are not many who have taken up the QLR scheme and so there are very few available advocates. This impacts cases because proceedings can be delayed whilst the Court searches for a QLR and can cause understandable frustration and concern on behalf of the parties.
If no QLR is found, the main options for the court are summarised in Paragraph 23 of the judgment:
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- The principal options facing a court at that stage are likely to be:
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.
The Court may well be in a position where it needs to take on the task of asking questions of a party because there are no other means for challenging the evidence. To that end, in Paragraph 39 of the judgment, Sir Andrew Macfarlane echoed the observations made by Hayden J in PS v BP [2018] EWHC 1987 (Fam) on the topic of Judges asking questions on behalf of a party.
‘(i) Once it becomes clear to the court that it is required to hear a case “put” to a key factual witness where the allegations are serious and intimate and where the witnesses are themselves the accused and accuser, a “Ground Rules Hearing” (GRH) will always be necessary;
(ii) The GRH should, in most cases, be conducted prior to the hearing of the factual dispute;
(iii) Judicial continuity between the GRH and the substantive hearing is to be regarded as essential;
(iv) It must be borne in mind throughout that the accuser bears the burden of establishing the truth of the allegations. The investigative process in the court room, however painful, must ensure fairness to both sides. The Judge must remind himself, at all stages, that this obligation may not be compromised in response to a witnesses’ distress;
(v)+(vi) [overtaken by MFPA 1984, Part 4B];
(vii) Where the factual conclusions are likely to have an impact on the arrangements for and welfare of a child or children, the court should consider joining the child as a party and securing representation. Where that is achieved, the child’s advocate may be best placed to undertake the cross-examination. (see M and F & Ors. [2018] EWHC 1720 Fam; Re: S (wardship) (Guidance in cases of stranded spouses) [2011] 1 FLR 319);
(viii) If the court has decided that cross-examination will not be permitted by the accused and there is no other available advocate to undertake it, it should require questions to be reduced to writing. It will assist the process, in most cases, if ‘Grounds of Cross-Examination’ are identified under specific headings;
(ix) A Judge should never feel constrained to put every question the lay party seeks to ask. In this exercise the Judge will simply have to evaluate relevance and proportionality;
(x) Cross-examination is inherently dynamic. For it to have forensic rigour the Judge will inevitably have to craft and hone questions that respond to the answers given. The process can never become formulaic;
(xi) It must always be borne in mind that in the overarching framework of Children Act proceedings, the central philosophy is investigative. Even though fact finding hearings, of the nature contemplated here, have a highly adversarial complexion to them the same principle applies. Thus, it may be perfectly possible, without compromising fairness to either side, for the Judge to conduct the questioning in an open and less adversarial style than that deployed in a conventional cross-examination undertaken by a party’s advocate.’
The judgment ends with Sir Andrew Macfarlane giving some practical points for Courts to consider when appointing a QLR or when preparing to put questions itself (Paragraph 41):
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;
42. 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.
The practical guidance offered by the President is likely to become a staple consideration for Courts and advocates as more and more parties are acting as litigants in person at a rate which is not matched by the numbers of QLRs.
