It is apparent that the statutory scheme for the provision of a qualified legal representative, brought into being by Part 4B of the Matrimonial and Family Proceedings Act 1984 and supported by Practice Direction 3AB of the Family Procedure Rules 2010, has not been a resounding success as there has been little take up by advocates volunteering to represent parties who are unrepresented, to cross examine the other party. The recent case of E F and G (Interim Child Arrangements) 2024 EWCA Civ 874, had to grapple with whether, and in what circumstances, the court should endeavour if at all possible, to appoint a qualified legal representative.
The brief facts of the matter are these. The parties were in a relationship from 2010 to 2022 and at the time of separation the mother was living in a Refuge with the children, all girls, who at the time were 11, 10 and 8 years old. The father hailed from Pakistan and the mother from Egypt. The father, who was unrepresented, made an application for a child arrangements order, prohibited steps order and specific issue order. Subsequent to that he also made an application for a Female Genital Mutilation Protective Order.
The mother opposed all the allegations and raised issues of domestic abuse, including physical abuse of the children and controlling and coercive behaviour towards her. The father then raised his allegations of domestic abuse and also that the mother had attempted to poison him with rat poison. All the allegations were denied.
The application was made in 2022 and as the proceedings progressed, the father who at the time of his application was not seeing the children, was granted contact. Initially by video and writing letters, progressing to contact in a contact centre, then dividing his time in the contact centre and in the community, but still supervised, by July 2023.
This is despite the section 7 report, filed on 29 May 2023, detailing a catalogue of allegations raised by the parties against each other and the children raising allegations of physical abuse upon them by the father and them being exposed to domestic abuse between the parents. The report recommended that a fact finding hearing was necessary and that contact should not progress beyond supervised contact in a contact centre. Directions were also made for a fact-finding hearing and at a subsequent hearing when the fact-finding hearing did not go ahead, directions were made for the appointment of a qualified legal representative to cross examine the mother on the father’s behalf.
In the period leading to the the adjourned hearing, it became apparent that the court might not be able to identify a qualified legal representative to represent the father at the fact-finding hearing. At the suggestion of the mother’s instructing solicitors, the father sent to the court questions which he wished to put to the mother.
At the time of the fact-finding hearing no qualified legal representative was still available and mother’s Counsel invited the court to proceed on the basis that the father had submitted his questions to the court, therefore his cross examination of the mother could proceed in that fashion. The father on the other hand sought an adjournment so that he could be represented by a qualified legal representative. The judge decided that the search for a qualified legal representative should continue and therefore the fact-finding hearing was adjourned.
The mother then filed a Notice of Appeal against the decision to adjourn the hearing (there was also an appeal against the order for contact outside of the contact centre) on the grounds that no qualified legal representative had attended the hearing, in circumstances where the father had provided a list of questions to be put in cross examination of the mother and therefore there was no good reason why the judge could not put the appropriate questions to the mother himself.
Determining the application the court delved into the relevant law in relation to the statutory scheme for the appointment of qualified legal representatives in family proceedings, including Practice Direction 3AB of the Family Procedure Rules 2010 and the recent case of case of Re Z (Prohibition on Cross Examination: no QLR [2024] EWFC 22. In Re Z the court had given guidance as to what should happen if a qualified legal representative could not be found and one of those options was to adjourn the proceedings and to continue in the hope of finding one.
The court decided that further efforts should be made for a qualified legal representative to be found because the issues were so complex, not least because the proceedings included an application for a Female Genital Mutilation Protective Order, and that it was better for the cross examination of the mother to be conducted by a lawyer for the father than by the court on his behalf. The court reiterated that it was not a ‘satisfactory alternative’ for the court to conduct the cross examination.
In the circumstances court was satisfied that there could not be a fair trial without the father being assisted with cross-examining the mother and that factor outweighed the general principle in Section 1(2) of the Children Act, that delay is likely to prejudice the child’s welfare. It was the court’s view that the delay was outweighed by the fact that without further attempts being made for a qualified legal representative to be appointed, the trial would be unfair.
This case therefore makes it clear that although the take up for qualified legal representative has been slow, the court can nevertheless in circumstances where it is justified, strive to get one appointed at least in circumstances where the issues involved are complex. The case also makes clear that the court asking the questions was not a ‘satisfactory alternative’ to a lawyer conducting the cross examination, and it is only if there is no alternative that the court should become involved.
The questions has to be asked however, complex case or not, how long should the search for a qualified legal representative go on for? No guidance was given and clearly it will be on a case by case basis, taking into account what is in the best interest of the child involved.
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