Policy paper

Cross-examination in family proceedings factsheet

Updated 3 January 2024

What are we going to do?

Prohibit perpetrators and alleged perpetrators of abuse from cross-examining their victims in person(and vice versa) in family proceedings in England and Wales.

We are also giving the court the power to prohibit cross-examination in person in family proceedings in certain other circumstances .

We are giving the family court the power to appoint a public-funded advocate (qualified legal representative) to carry out the cross-examination in limited circumstances where necessary. Guidance will be issued about the scope and nature of that role.

Few things are likely to retraumatise victims more than being subject to direct cross-examination by their abuser in legal proceedings. Such an experience will inevitably cause immense stress and would of itself be a continuation of the abuse.

Justice Secretary, Robert Buckland, Commons second reading of the Bill, October 2019

How are we going to do it?

These provisions will introduce an automatic ban on cross-examination in person:

• where one party has been convicted of, given a caution for, or charged with certain offences against the witness;
• where an on-notice protective injunction is in place between the party and witness;
• where there is other evidence of domestic abuse perpetrated by a party to the proceedings towards a witness (or vice versa). This evidence will be specified in regulations, and we intend to broadly replicate the evidence criteria used in the legal aid regime.

In each of these circumstances, the ban will apply both ways: it will protect the victim from cross-examination by their abuser, and from having to cross-examine their abuser themselves.

We believe that, in addition to victims of domestic abuse, the provisions will provide protection to a wider range of vulnerable people and victims of other types of abuse. We will specify in regulations which offences will trigger the automatic prohibition, and expect these to include offences related to domestic abuse or violence, child abuse and sexual abuse.

The provisions will further give the court a power to prohibit cross-examination in person where it would be likely to either diminish the quality of the witness’s evidence or cause significant distress to the witness or party.

Finally, the Act also gives the court the power in specified circumstances to appoint a qualified legal representative to conduct cross-examination on behalf of a party who is prohibited from cross-examining the witness in person. The court-appointed legal representative will be paid from central funds and guidance will be issued about the scope and nature of their role in the proceedings.

Background

Courts hearing family proceedings do not have an express power to prevent a perpetrator or alleged perpetrator of abuse from cross-examining their alleged victim in person, nor do they have the power to order that an advocate be appointed (and funded) to carry out the cross-examination on behalf of the alleged perpetrator.

The fact that it is possible at present for perpetrators (alleged or otherwise) to cross-examine their victims in person in family proceedings has attracted criticism and it is widely accepted that such cross-examination can cause the victim significant distress and potentially diminish the quality of their evidence.

Alternatives to cross-examination in person, such as the judge, magistrate or a justices’ clerk asking questions of the witness instead, already exist. However, there are some circumstances in which these measures would be inadequate and so the Act provides the courts with specific powers to ensure the fairness of proceedings.

We recognise that family proceedings in particular can be incredibly difficult for victims, and in recent years we have taken several steps to improve the court process for vulnerable people in the family justice system. This includes introducing in England and Wales new court rules in Part 3A of the Family Procedure Rules 2010 and accompanying Practice Direction 3AA, which are aimed at improving in-court protections for victims of domestic abuse.

We also introduced a revised Practice Direction 12J which makes clear that the court should have full regard for the harm caused by domestic abuse when making decisions about child arrangements, and a new training programme for all court staff on the needs of vulnerable court users.

However, we are determined to further improve the support and protections available for vulnerable witnesses in the family justice system. In June 2020, a Ministry of Justice appointed panel of experts published its final report on victims’ experiences of private law children’s proceedings. The report makes a number of recommendations in relation to both the processes and the outcomes for parties and children involved in such proceedings, based on the evidence submitted, including submissions from over 1,200 organisations and individuals.   

Alongside the report, the government published an Implementation Plan, outlining its commitment to overhaul the system. This included immediate changes and commitments to address long-standing issues in the system. That is why we included section 63 in the Act, which provides victims of domestic abuse with automatic eligibility for special measures in the family courts.

Sections 64 and 66 of the Act also make provision for, respectively, special measures and prohibiting cross-examination in person in the civil courts . Please refer to the separate fact sheets for further information on sections 63, 64, and 66.

Do the provisions only apply to victims of domestic abuse?

No. While we anticipate that many victims of domestic abuse will benefit from these provisions, the legislation is not limited to just domestic abuse and will protect a wider range of vulnerable witnesses in the family court.

What about victims who don’t have a caution, conviction, charge, or injunction against their abuser?

Our intention is that the provisions should protect every victim of abuse who is a party to family proceedings.

We recognise that many victims either are not able to or choose not to pursue their abuser through the justice system.

The automatic prohibition will therefore also apply where there is other evidence of domestic abuse, such as that relevant for the purposes of accessing civil legal aid in England and Wales.

In addition, this is why the provisions also give the court the power to prohibit cross-examination in person in other circumstances, including where the witness or party would be caused significant distress, or the quality of their evidence would be diminished.

Does this mean cross-examination in the family court is banned?

Cross-examination will not be banned in family proceedings. Where cross-examination in person is prohibited, the provisions require the court to consider satisfactory alternatives and where there are none, and where it is in the interests of justice, gives the court the power to appoint an advocate for the sole purpose of cross-examining the witness on behalf of the party.

Will public funding for a representative be made available in every case where the prohibition applies or is ordered?

The court will appoint a qualified legal representative in some cases where the prohibition applies.

The provisions require the court to first consider if there are any satisfactory alternative means for the witness to be cross-examined or to obtain the evidence that they might have given in cross-examination.

If there is are no satisfactory alternatives, the court must invite the party to appoint a legal representative to cross-examine the witness. If the party does not do so, the court can then consider whether it is in the interests of justice to appoint a legal representative to carry out the cross-examination, paid for from central funds.

The court-appointed legal representative would not be acting for the party as their lawyer, and will only be responsible for cross-examining the witness.

How will proceedings involving a legal representative appointed by the court, who is not responsible to any party, be fair and compliant with the ECHR?

These provisions will ensure that the person’s Article 6 rights to a fair hearing are not prejudiced as a result of their being prevented from conducting cross-examination in person. Where a party is prevented from cross-examining in person, the court will have to actively consider whether there are satisfactory alternatives to direct cross-examination. If there are none, then the court must invite the party to arrange for a qualified legal representative to undertake the cross-examination. If the party does not do so and the court considers it necessary in the interests of justice for the witness to be cross-examined by a qualified legal representative appointed by the court, they must appoint such a qualified legal representative.
The rights of other parties, including the person who is to be cross-examined, will also be better protected as the quality of evidence and conduct of the hearing will be improved as a result. We therefore consider that these provisions will ensure a fair hearing for all parties.