The Impact of the Domestic Abuse Act 2021 for Practitioners and Litigants in Person

With the cost of living on the up and finances tighter than ever, individuals involved in family related disputes often find themselves unable to fund legal representation and are forced to navigate the minefield that is the Court arena themselves, as Litigants in Person. Whilst many people may be comfortable and able to do this, there was a distinct gap in the law to protect those who are - or may be – victims of domestic abuse at the hands of their partner or relative, who happens to be on the ‘other side’ of the dispute.  How can these individuals be expected to meaningfully participate in Court proceedings, during which they may have to put questions to – or be questioned by their abuser (or alleged abuser) and put their ‘best foot forward’ before the Court? 

The reforms introduced by the Domestic Abuse Act 2021 have provided some answers. 

The Domestic Abuse Act 2021 is landmark legislation in the United Kingdom aimed at transforming the response to domestic abuse within Court proceedings. It emphasises that domestic abuse is not limited to physical violence and in fact it also includes emotional, controlling, coercive, and economic abuse.

In July 2022, Section 65 of the Domestic Abuse Act introduced significant changes to the Matrimonial and Family Proceedings Act 1984 to offer enhanced protection to not only confirmed victims of abuse, but also those making allegations of abuse within Family Law proceedings. 

The Domestic Abuse Act introduced a variety of safeguards to do this and one of the key changes is the introduction of a statutory prohibition on cross-examination within contested proceedings. 

Previously, in person cross-examination by alleged perpetrators of domestic abuse to their victim / alleged victim was discouraged, but it was not prohibited, and often judges would step in to put questions to one or more parties.  Whilst judges can still put questions to parties should they wish to do so, this practice generally caused problems both in terms of the resources required of the Court to facilitate this and the impact on victims being questioned by their abuser, who would often have no legal training or ability to ‘filter’ questions appropriately in the context of Court proceedings.  This would be a particularly traumatic experience for those individuals.   

The Domestic Abuse Act 2021 created a specific prohibition on one party cross examining the other directly in specified circumstances.  The new provision prevents the alleged perpetrator from personally cross-examining the alleged victim.  Alleged victims may also be prohibited from cross-examining alleged perpetrators in certain circumstances. The prohibition applies not only to the individual accused of domestic abuse, but also to the victim/ alleged victim. 

This is easily dealt with where both parties are legally represented during proceedings, as cross-examination will be conducted by their legal representative.  In this instance, parties will not need to communicate or question the other directly, and in fact may not even see each other during the hearing, especially if screens or dividers are placed in the Court room. 

But what happens when one or both parties are a litigant in person, does this simply mean that they are without a legal representative to conduct cross examination? This is where these provisions become particularly relevant. 

The prohibition of in-person cross examination applies when: 

• An alleged perpetrator has already been convicted, given a caution, or is charged with a specified offence.
• There is an on-notice protective injunction (for example, a Non-Molestation Order) in force against the alleged perpetrator.
• A person adduces "specified evidence" that they have been a victim of domestic abuse.

At the time of writing, there has been no regulation defining exactly what constitutes "specified evidence" under the Act. 

Even if none of the above conditions apply, the court still has the discretion to prohibit cross-examination should it feel necessary to do so, but only if certain criteria are met. This is usually on the basis that the alleged victim cannot properly participate without special measures being put in place and that the quality of their evidence would be significantly impacted if they are questioned directly by their alleged abuser.  The Family Procedure Rules create an assumption that, where the one party is, or is at risk of being a victim of domestic abuse carried out by the other party, the Court must assume that the quality of their evidence is diminished and in such circumstances, must consider whether it is necessary to make participation directions. 

Such participation directions may include the Court inviting the parties to make representations in writing, or other safeguards (such as the screens / dividers mentioned above, alongside separate entrances, waiting rooms etc.,), however often the unrepresented party will need to seek the appointment of a Qualified Legal Representative (“QLR”) in the absence of a satisfactory alternative.

What is a QLR?

The QLR will be appointed by the Court (on behalf of either party – whether it be the accused or the alleged victim) and is usually a qualified, experienced barrister.  However, they are not engaged by the Court in the capacity of the “ordinary legal advocate”; whilst they can exercise their professional judgment and will not be prevented by the Court in doing so, their role is to ensure fairness within the proceedings by conducting the cross-examination on behalf of the prohibited party.  They will, in most cases, meet with the prohibited party to obtain the relevant information that will form the basis of the cross examination and any position statement drafted however they do not owe the usual “lawyer – client” responsibility to that individual. 

A QLR can be appointed within various types of proceedings, ranging from Matrimonial Finances, Family Law Act (injunctions) and Children Act proceedings. In particular, litigants in person in Family Law Act proceedings where there are children involved are reminded that the Court must, when exercising its powers, consider all the circumstances of the case including the need to secure the health, safety and wellbeing of the Applicant and relevant child. Where a parent alleges domestic abuse at the hands of the other parent, this is particularly relevant; the welfare of that parent will be relevant to the overall welfare of the child, and it is of course crucial that both parents are able to comfortably and safely participate in proceedings and give their best evidence.  Litigants in person should be reminding the Court of this duty when making applications for participation directions, including the appointment of a QLR, to assist with their engagement in proceedings.

Whilst in principle the provisions of the Domestic Abuse Act in relation to cross-examination and the introduction of the QLR are overwhelmingly positive and intended to remedy the struggles faced by victims of domestic abuse within family proceedings, their implementation has not been without difficulty, largely due to resources.  The Court system is overwhelmed with cases, and the number of QLRs available is extremely limited.  It is therefore advisable to consider whether a QLR or any other participation directions will be required as early as possible and if so, to obtain directions at the initial directions hearings. 

If you or someone you know is involved in family proceedings in which there are allegations of domestic abuse and you would like to speak to one of our specialist expert solicitors, please do get in touch.