Re Z

When making a direction under section 31W of the Matrimonial and Family Proceedings Act 1984 for the appointment of a qualified legal representative to act for a party for the purpose of cross-examining a witness whom that party is prohibited from cross-examining in person, a requirement should be included in the court’s order directing that the case be returned to the court for further directions if, after 28 days (or whatever reasonable period is chosen), the court has not succeeded in appointing the qualified legal representative. The principal options facing the court at that stage are likely to be: (a) an adjournment in the hope that a qualified legal representative may be found; (b) an adjournment to allow one or both parties to engage their own advocate; (c) reviewing the need for the witness to give oral evidence and be cross-examined (including reviewing the need for there to be a fact-finding hearing in the proceedings); (d) considering any other alternative means of avoiding in person cross-examination between the relevant parties; and (e) the court itself taking on the task of asking questions in place of the party acting in person (post, paras 22–23).

When considering the options, the court will take account of FPR PD 3AB, para 5.3, which states that the court itself conducting the cross-examination on behalf of a party is not a satisfactory alternative to cross-examination in person. However, that provision does not, as a matter of law, prevent the court undertaking the task if it considers that, in the interests of justice, it must nevertheless do so. Where there is no other alternative, the need to ensure that the parties are on an equal footing coupled with the need to bring the proceedings to an expeditious and fair conclusion in a proportionate manner (as required by FPR r 1.1(2)), are likely to lead the court to decide to ask the necessary questions itself (post, paras 24–26).

If the court decides to abandon further attempts to appoint a qualified legal representative, the previous direction appointing one must be discharged and, as a matter of good practice, the reasons for discharge should be very shortly recorded on the face of the order and/or in a short judgment (post, para 27).

When undertaking questioning, the court has to tread a narrow path between, on the one side, ensuring the witness’s evidence is adequately tested by the points that the other party wishes to raise while, on the other, ensuring that the court does not enter the arena or be seen in any way to be promoting the case of one side or the other. The court is merely acting as a channel of communication and not as an advocate seeking a particular answer to a question or, more generally, a particular outcome to the case. A further need for caution may arise from the need for the court to avoid taking an important point on behalf of one party which that party has not themselves raised. However, during a fact-finding hearing, it must be expected that the court may spot a point that has not been raised by either party but which requires clarification. In such circumstances, provided that the manner in which the court raises the point and questions the party or parties about it is fair, the court should not feel that it is prevented from doing so. The lodestar for a court which takes on the task of asking questions on behalf of a party who is acting in person must be fairness. In every case fairness should require the court to be very open with the parties as to the process that is going to be adopted by explaining what is to happen, step by step, at the start in short straightforward terms (post, paras 29, 33–36, 38, 42).

Dicta of Hayden J in S v P (Unrepresented Party: Cross-examination) [2018] 4 WLR 119, paras 16, 34 approved.

Practical points for the court to consider either when appointing a qualified legal representative or when preparing to ask questions itself (post, para 41).