Fact Finding Hearings and Cross Examination by Litigants in Person.

Private Law (Child Arrangements Programme (CAP))

14 December 2018

Since the ending of legal aid in private law proceedings, it has become more frequent for cross examination to be conducted by litigants in person, including in cases where the court has deemed that there should be a fact finding hearing, before determining what if any contact should be ordered. The recent case of PS v BP [2018]EWHC 1987, emphasises the need for there to be a coherent and settled procedure, as to whether the cross examination should be conducted by the court or by the litigant in person himself and what question should be allowed in cases where serious and intimate allegations have been made. The court also needs to be mindful of the need to strike the balance as set out in Paragraphs 19(j) and 19(l) of Practice Direction 12J, to enable that the hearing is fair to all parties.

In PS v PB a father applied for a Child Arrangements Order enabling him to spend time with his child. Thereafter the matter was listed for a fact finding hearing before a Circuit Judge. There were six allegations on the Scott Schedule, reduced to two on the morning; they being one of rape and strangulation and another of strangulation only. By the date of the fact finding hearing the father was now represented. The judge made it clear from the outset when the case began that he would not be allowing the father to cross examine the mother. That was the first time that the father became aware that he would not be allowed to cross examine her and he was plainly taken by surprise. The judge then gave a short judgment without inviting representations from the mother’s Counsel or the father.

The judge’s reasoning was primarily based on the decision in the case of Re:A (a minor)(fact finding;unrepresented party [2017] EWHC 1195 where the court made it clear that,

“It is a stain on the reputation of the Family Justice system that a judge can still can 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.”

The court also made reference to the recent case of Re:J (Children)(Contact Orders;procedure) 2018 EWHC Civ115 where it highlighted the substantial difficulties caused by a litigant in person, whose case needs to be put to a person who has directly accused him of behaviour of the most intimate and serious nature. The court reviewed the various strategies to meet this problem which had been contemplated and attempted in recent times. One such proposition, where there was no alternative source of funding for the alleged perpetrator of domestic abuse, was for the court to direct that funding is provided by HM Courts and Tribunals Service. This proposal was however rejected in a subsequent case, Re K and H [2015] EWCA Civ 543, where the court held that a judge in family proceedings lacked the power to make such an order.

By way of assistance the court made the following observations, making clear that it was not offering guidance and adding that they should be treated as a “forensic life belt until a rescue craft” arrives by way of Parliamentary intervention:

(a) there should be a grounds rules hearing in cases where the allegations are serious and of a intimate nature which should be conducted before the fact finding hearing;

(b) there should be Judicial continuity between the grounds rules hearing and the fact finding hearing;

(c) the burden of proof rests with the accuser to proof the allegations and the hearing must be conducted fairly, regardless of whether the accuser is distressed in the witness box or not;

(d) there is no presumption that the accused should not be able to cross examine the accuser in every case;

(e) if the judge forms the view that the cross examination of the alleged victim presents a real risk of being abusive, it should bear in mind that the impact of the court process is likely to adversely impact on the welfare of the children;

(f) where the findings are likely to impact on the arrangements and welfare of the child, the court should consider joining the child in the proceedings;

(g) where the court decides that cross examination should not be prevented by the accused and there is no one available to undertake it, it should require questions to be reduced into writing, with the questions put into specific headings;

(h) a judge shouild only allow questions that are relevant and proportionate;

(i) it should always be borne in mind that the central philosophy of Children Act proceedings is to investigate and therefore it is possible without compromising fairness to either side, for the judge to conduct the questioning in a less adversarial style.

As this scenario becomes more prolific it is hoped that Parliamentary intervention arrives sooner rather than later.








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