Qualified Legal Representative’s – the challenges so far

Family Law

02 July 2024

For cases issued after 21 July 2022, the Court has jurisdiction to appoint a Qualified Legal Representative (“QLR”). In family cases, the necessity for such an appointment usually arises upon application of section 65 of the Domestic Abuse Act 2021 or amendments to the Matrimonial and Family Proceedings Act 1984 which restricts litigants in person from cross-examining parties or witnesses in certain circumstances.

Whilst initially perceived as a victory in ensuring vulnerable parties or witnesses were shielded from being cross examined by those they make accusations about, the reality often faced is that even once an appointment is made, there are further challenges in ensuring a QLR is available to attend as directed. The Court, practitioners and litigants in person are left to grapple with the question of how to proceed in the absence of a QLR who the Court have already determined is required.

The recent case of RE: Z (Prohibition on Cross-examination: No QLR) [2024] EWFC 22I gives not only a detailed overview of the legal framework for the appointment of a QLR but a helpful examination of the practical limitations should a QLR not be available. In reality, the options available to the Court are often quite limited and whilst not an exhaustive list, could include:

  1. A further adjournment to secure a QLR’s attendance
  2. An adjournment to enable one or both of the parties’ to secure legal representation for the hearing during which cross-examination would take place
  3. The Court reviewing whether the vulnerable party needs to give oral evidence and be cross examined
  4. The Court asking questions on behalf of the litigant in person

When considering the above list, the reality often faced by the Court is that the only viable or proportionate option is the Court asking questions on behalf of one the parties. However, this itself does not come without issue. The evolving process of asking questions during a live hearing gives rise to challenges and as detailed in the case of Yuill v Yuill [1945] P 15 at page 20:

‘A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation.’

In the case of RE: Z (Prohibition on Cross-examination: No QLR) [2024], both parties appeared as litigants in person and as such, Sir Andrew McFarlane asked all of the questions during the course of the hearing. Within judgement, Sir Andrew McFarlane notes the task of asking questions to be “particularly burdensome, unnatural and a tricky one” and highlights the needs for overall fairness in the process, providing useful guidance as to how this may be achieved including the Court resisting the temptation to move in to full cross examination mode and all involved referring to the Court “asking questions that the other parties wishes to have asked” as opposed to “cross-examination”.

Whilst Courts continue to act with due diligence in trying to secure the attendance of a QLR where one has been deemed required, it regrettably remains the case this is often not achievable. Courts, practitioners and litigants in person therefore need to ensure they are adequately prepared for all eventualities and should be live to the issues surrounding the effectiveness of a matter should a QLR be appointed.

To achieve this, Sir Andrew McFarlane provides the following as final practical points to consider:

  1. 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;
  2. 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;
  3. 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;
  4. 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;

For help, advice or if you wish to instruct a member of Chambers, please contact our Clerking team