Alice Thornton joined Chambers in October 2022 after the successful completion of her pupillage under the supervision of Nick O’Brien, Greg Williams and Sarah Branson. She is building a busy practice is all areas of family law, including public and private children as well as financial remedy proceedings.
Qualified Legal Representatives: Law and Practice
What is a Qualified Legal Representative?
The role of a Qualified Legal Representative (‘QLR’) is summarised in the guidance as ensuring that “the fairness of the proceedings is maintained, by carrying out the cross-examination which the prohibited party is prohibited from performing”.[1] The intention being to prevent alleged abusers from cross-examining alleged victims (and alleged victims from having to cross-examine alleged abusers) in the all-too-common scenario of one or both of the parties being legally unrepresented in proceedings. However, a QLR is not responsible to the party that they are asking questions on behalf of; instead, they are accountable to the court.
The Law: When is party entitled to a QLR?
The legislation only impacts family proceedings issued on or after 21 July 2022. There are likely to be some proceedings which are still ongoing from before that date. In those cases, the previous rules continue to prevail.
Section 65 of the Domestic Abuse Act 2021 inserted Part 4B into the Matrimonial and Family Proceedings Act 1984. A short summary of the provisions of Part 4B are as set out below:
Under Sections 31R – 31T, a party will automatically be entitled to a QLR when:
- One party has been convicted of / given a caution for / is charged with an offence against the other party;
- There is an on-notice protective injunction in place between the parties; or
- One party has evidence of domestic abuse. The list of the specified evidence is found in Schedule 3 of The Prohibition of Cross-Examination in Person (Civil and Family Proceedings) Regulations 2022.
Even if there is not an automatic prohibition, the court may nevertheless give a direction prohibiting cross-examination either on application by a party or of its own motion (Section 31U(4)). The test laid out in s31U(1)(b) states that the court will make such a direction where it appears that the:
- The quality condition or the significant distress condition is met, and
- It would not be contrary to the interest of justice to give the direction.
The quality condition is met if the evidence is likely to be diminished and would be improved with the use of a QLR (Section 31U(2)). Quality of the evidence is defined in the statute as “completeness, coherence and accuracy” (Section 31U(6)). Coherence is further defined as meaning the ability to give answers which “address the questions” and “can be understood, both individually and collectively” (Section 31U(7)).
The second condition of significant distress is met if the cross-examination is likely to cause significant distress and it is likely to be more significant than if questioned by a QLR (Section 31U(3)).
The court is to have regard to, among other things, the list of factors set out at Section 31U(5). Further, the court must also specifically consider whether there is a suitable alternative means for the witness to be cross-examined or of obtaining the evidence that might have been given under cross-examination (Section 31W(2)). Paragraph 5.3 of Practice Direction 3AB explicitly states that the Judge conducting the cross-examination is not a satisfactory alternative.[2]
A decision under Section 31U to direct a QLR is binding until the relevant witness is discharged (Section 31V). It may be revoked by the court before then, if it is in the interests of justice to do so. If there’s an application by a party for revocation, it should only be revoked if there has been a material change of circumstances.
In Practice
It is sensible for practitioners to consider whether a QLR will be necessary at the earliest stages of any proceedings. This will not only be cases where the other side is already a litigant in person, but also where either party indicates that they may not be represented at the next hearing. If a party unexpectedly becomes unrepresented prior to a hearing where a QLR would be necessary, then it is likely to cause the hearing to be ineffective if not dealt with sooner.
The directions for instructing a QLR are set out at Paragraph 6.2 of Practice Direction 3AB. In summary:
- Invite the party to arrange for a QLR and specify the date by when the party must notify the court of the identity and contact details of such representative;
- If the party states that they do not want or are unable to make such arrangements, or fails to notify the court by the date specified, the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a court-appointed QLR;
- If so, the court must choose and appoint a QLR from the court-maintained list of QLRs and make directions for such appointments.
Even if there is an order for a court-appointed QLR, there is no guarantee that one will be available. The President of the Family Division in his most recent ‘View from the President’s Chambers’ in July 2023 provided the following suggestions of how to approach cases where no QLRs are found (although it will be for the Judge in each individual case to decide how to proceed):[3]
- If no QLR is found within 28 days, the court should list the case for directions and direct that some summary information is provided by HMCTS about the difficulties that have been encountered.
- There is no guidance as to the test to be applied for the termination of a QLR appointment, but the President suggests a similar focus on whether it is in the “interests of justice” to do so and consideration of the overriding objective (both the need to deal with matters expeditiously and fairly as well as to ensure that parties are on an equal footing).
- Time should be taken to consider whether there is a suitable alternative, e.g. directly instructing an advocate.
- If the appointment is discharged, short reasons should be recorded for doing so.
- The guidance that the Judge conducting cross-examination is not a satisfactory alternative “does not trump the overriding objective”. Ultimately, the court may have to do so when it is the “only way to deal with the case, justly, expeditiously and fairly in the absence of a QLR”.
The court may find itself in the unenviable position of having to go through all the procedural steps, but then returning to the practice that was one of the catalysts for the introduction of QLRs in the first place.
[1] ‘Statutory Guidance: Qualified Legal Representative appointed by the court’ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1101848/final-statutory-guidance-role-of-the-qualified-legal-representative.pdf, page 11.
[2] Curiously, the Explanatory Note to the Domestic Abuse Act 2021 includes a judge putting questions to a witness as a specific example of a ‘satisfactory alternative means’.
[3] Sir Andrew McFarlane, ‘A View from The President’s Chambers: July 2023’ https://www.judiciary.uk/guidance-and-resources/a-view-from-the-presidents-chambers-july-2023/, paras 16-20.
