When the Legal Aid, Sentencing and Punishment of Offenders Act was being debated, one of the consequences of the wholesale withdrawal of legal aid in family proceedings which practitioners warned about, was that victims of abuse would find themselves subjected to cross-examination by their tormentors. These warnings, I recollect, were dismissed as trade union self-interest and the legislation rolled on to the statute book.

Now, there is the unmistakable sound of fluttering wings, as the inevitable chickens return home to roost.

The direct questioning of the victim by the alleged perpetrator, can no longer happen in criminal cases. Section 34 of the Youth Justice and Criminal Evidence Act 1999 prohibits a defendant, charged with a sexual offence, from cross-examining the complainant and section 35 extends a similar protection to child witnesses in certain (primarily sexual) offences. There is an additional judicial discretion to prohibit the accused from cross-examining particular witnesses in section 36.

Clause 47 of the Bill seeks to put in place a comparable scheme for the Family Court.

A new section 31R to be inserted into the Matrimonial and Family Proceedings Act 1984 would prohibit anyone convicted or charged with ‘a specified offence’ from cross-examining the victim or alleged victim of that offence. There is also a prohibition on the victim or alleged victim being required to conduct their own cross-examination of the alleged perpetrator. This second part is particularly welcome. The difficulty with this clause arises when we look for the definition of ‘a specified offence’ within the Bill and find that it will be contained in regulations by the Lord Chancellor to be made under the negative resolution procedure.

What this means is that these provisions will apply to whatever wide or narrow range of offences the Lord Chancellor at any particular time may see fit to decree. The list will only receive parliamentary scrutiny if parliamentary time is found for a resolution to annul the regulations to be brought before either House. It would be infinitely better if the Bill set out an irreducible minimum list of offences which would be covered. The adequacy of this could then be debated with the Bill and amended as thought appropriate. There could be no objection to the Lord Chancellor having power by regulation to add offences to that list, perhaps as new ones were created, but we would at least know whether we are being offered a full suit of clothes or a political fig leaf.

The Bill goes on to propose a further area of prohibition, whereby, if there is in force, an ‘on-notice protective injunction’ the same prohibitions will apply. The difficulty here is that, rather like a large-gauge fishing net, there are more holes than loops.  Consider the following:

• Rather than applying for an injunction, the victim simply moved away and hoped that this would be an end to it.
• The victim was subjected to family, cultural or other pressures not to apply to the court for an injunction.
• The proceedings are taking place after the injunction has expired. These orders are not usually made for more than 12 months in the first instance.
• If the victim had savings, they may have found that legal aid for injunction proceedings was only available at a prohibitively high financial contribution and so they decided that, in all the circumstances those funds were better deployed on housing, furniture, transport and the like.

At the time of the separation, the victim, who may have had little or no English, was not aware of the possibility of applying to the court for a protective injunction.

If the victim falls through any of these loop holes, then they are left with a discretionary power in the proposed section 31T, whereby the court can prohibit cross-examination if either, the quality of the evidence would be likely to be improved by professionally conducted cross-examination, or if the distress caused by the cross-examination would be less significant. There are various factors listed to which the court must have particular regard when determining this issue.

There is an unspoken assumption within the draft section 31T that the victim, or alleged victim, will have access to legal representation, able to guide them through these labyrinthine provisions. That assumption is by no means a sensible one to make. We now start from the position that legal aid is not available for family proceedings. Even if you give full credit for all the progress made relaxing the domestic violence evidence requirements and assume that the application will not be subject to a bizarre, merits-based, refusal, the fairly stringent financial eligibility provisions still apply. The extent to which housing costs may be taken into account are, for example, capped. It is perfectly possible that a victim with a reasonable job, but a high monthly rent or mortgage bill, or left paying off large unsecured debts, may have no alternative but to act for themselves. They are likely to look at these provisions with blank incomprehension, even if they were aware of their existence.

In its submissions to the House of Commons on the second reading of the Bill, Justice has a simpler and better proposal, although it may not commend itself to the Treasury. At paragraph 20 they say;

‘20. In our view, if allegations of domestic abuse are made in family proceedings, it is wholly inappropriate to allow the alleged perpetrator to examine the victim at all. We cannot envisage any circumstances where this is an acceptable way of taking evidence, a concern reflected in the evidence cited above, and should not be left to the judge’s discretion. Such an option can only lead to distress and poor quality evidence. Rather than require the judge to make an assessment, which research shows judges feel uncomfortable and ill equipped to do, Parliament should remove the opportunity entirely.’

This would be a far fairer approach. If there must be representation for cross-examination, whenever an allegation of abuse is made, no party will be left feeling that the judge was prejudiced against them from the start. Stand for a moment in the shoes of the alleged abuser. Fabricated allegations are a sad fact of life and do as much harm to genuine victims as to those the allegations are made against. If a judge says ‘there are certain parts of this case where the rules insist that you must have assistance from a lawyer’, that is going to be much more neutral and acceptable than if the judge says that the quality of the accuser’s evidence will be better if I force you to have a lawyer of my choosing. Many will hear that as saying ‘I don’t really need to hear the case to know that you are a nasty piece of work’. What of the alleged victim whose application is refused? Will they ever really believe that they are going to get an impartial hearing?

The decisions which will be made in these proceedings will have far-reaching effects, not only for the adults, but also the children, whose future relationship with one of their parents will often fall to be determined at the end of these cases.

It is not enough to look at the provisions of the Bill in isolation. The proposals need to be tested in the context in which they will be expected to operate in the real world. Put them alongside the proposed changes to Practice Direction 12J and it becomes clear that these are proceedings which may lead to the termination of any meaningful future relationship between a child and one of his or her parents on the basis of the findings which are to be made. It is essential that the court has the best possible evidence before embarking on such a course. Not only should the wrongly accused be protected, but, where draconian orders are needed, the court should feel sufficient confidence in its findings to act decisively.

These provisions have the capacity to be a quantum step forward in family justice. It would be a crying shame if a bold and laudable initiative were emasculated by penny-pinching.

POSTSCRIPT: On 20 April 2017, in preparation for the dissolution of Parliament prior to the June 2017 general election, the Government withdrew the Prisons and Courts Bill. It may be re-introduced when the new Parliament re-convenes.