For a number of years there has been a debate about whether alleged perpetrators of domestic abuse should be allowed to cross examine their victims in the family court. This situation arises in cases where the alleged perpetrator is a parent and has made an application to the Court for a Child Arrangements Order. A Child Arrangements Order is a Court Order which sets out the level of contact a parent is to have with their child and/or to determine which parent the child should live with. It is usually, but not always, the father who has applied to the court and the mother who is alleging domestic abuse.
The Court will list the matter for what is known as a Finding of Fact Hearing in circumstances where allegations of domestic abuse are raised. If the court finds that the mother has been subjected to abuse, it will be cautious about making any Orders for the child to spend time with an abusive father. On the other hand, if a mother knows that allegations of abuse will mean she is more likely to be successful in securing an Order that the child spends only supervised or no time with the father, she could make false or exaggerated claims of abuse in attempt to sabotage the relationship between father and child.
It is the right of the parties to have a fair trial in family proceedings. If there are allegations of abuse, this right extends to being able to question and cross examine the alleged victim. However, where the allegations are genuine, the act of the cross examination could unwittingly be an extension of the abuse itself.
Since the abolition of Legal Aid for the majority of family cases in 2013, many people are making applications to court without legal representation. These are known as ‘litigants in person’. A litigant in person has a right to conduct the court proceedings in the same way as a solicitor or barrister, this includes cross examining the other party.
The courts therefore have to strike a balance between the right to a fair trial and protecting vulnerable witnesses.
This issue came to the fore in a recent case in the High Court which ran on for 6 days and finished on 4th May 2017. The father who was representing himself was able to cross examine the mother in respect of abuse allegations. The judge, Mr Justice Hayden, was clearly moved by the mother’s experience and went into some detail about cross examination in the family courts. He had tried to limit the damage of the father’s questioning by allowing the mother to give evidence via video link with her back to the camera.
In the judgement Mr Justice Hayden stated: “(the mother) has at times looked both exhausted and extremely distressed.” He went on to say:
“It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.”
This case does not create a precedent; each case involving a cross examination of this nature will be managed by the judge hearing the case in their own way. In criminal court proceedings an alleged perpetrator cannot cross examine a victim. An outright ban on alleged perpetrators cross examining their alleged victims in the family court could prejudice the right to a fair trial. However, the current situation leaves vulnerable witnesses open to further abuse through the court process and judges have limited powers to protect them.