If former partners are not able to reach an agreement and instead have to rely on an application to the Court, whether to determine financial matters or arrangements for children, then at a Final Hearing the Court will need to hear witness evidence from the parties.
It is sometimes necessary for the parties to give evidence at an early stage in proceedings under the Children Act at a Fact Finding hearing, if there are allegations of violence that, if proven, would make a difference to the final decision within the proceedings.
Where both parties are legally represented, then the individuals will not have to ask each other questions. However, if one or both parties do not have legal representation, then the unrepresented party will have the right to ask questions of the other during cross-examination.
This is a daunting prospect, both for the person who has to ask the questions and the person who has to answer them. No one would relish the thought of facing their former partner in Court in this way. In any form of proceedings, a Judge will stop any line of questioning that is inappropriate to the issues, or is a repetition of a question previously answered.
In cases involving allegations of domestic violence, this has the potential to cause further emotional harm to the party who has made the allegations. An unrepresented party accused of domestic violence will have the opportunity to cross-examine their accuser. Whilst it is only right than an unrepresented person accused of domestic violence be able to defend their case as they would if they had legal representation, it is certainly alarming to think of the person who has made the allegations being asked questions about their evidence by the person they are accusing.
There are, fortunately, a number of safeguards that a person making an allegation of domestic violence can request if they have to appear at Court. Separate entrances and waiting areas can be arranged and the Court can arrange for one party to sit behind a screen or on a video-link so that the parties cannot see each other. Support workers may be able to attend Court if permission is granted by the Judge, and even if they are not able to enter the Courtroom itself it can be reassuring to know that they are present in the building if required before or after the hearing or during any breaks. These are fairly standard arrangements that are available in appropriate cases where both parties are legally represented. However, the rising number of people representing themselves in Court proceedings has led to some additional steps being taken in such circumstances. For example, in a recent case involving one of my clients, the unrepresented accused had to submit a list of questions that they proposed to ask to the Judge 48 hours before the hearing so that the Judge had time to consider these.
In appropriate circumstances the Court can therefore make appropriate directions to ensure that parties to Court proceedings feel adequately protected when giving their evidence. However, there is a growing call by the judiciary for urgent attention to be given to the issue of an alleged victim of violence being cross-examined by their alleged abuser. In a recently reported case, Hayden J referred to the problem of an alleged victim being cross-examined by an alleged perpetratory as a “stain on the reputation of the family justice system” and called for urgent attention to be given to this issue. Whilst it was announced on the 5th December that the rules governing the provision of legal aid for victims of domestic violence will be loosened from January 2018, this does not address the crucial problem of unrepresented parties who are accused of domestic violence being able to cross-examine their alleged victim.