There’s been legal chatter for a while about the issue of alleged perpetrators of domestic violence being able to cross-examine alleged victims. There was a big press campaign, and our beloved Lord Chancellor got knee-jerked into issuing a ‘something will be done’ statement without actually getting any funding for it, which then got kicked into the long grass in the quest for strong and stable Government by calling a snap election.
Lucy Reed over at Pink Tape has written about it quite a lot, and well worth checking out Pink Tape if you don’t already read it.
Anyway, here is Hayden J’s pretty savage commentary when it arose in a case before him
A (A Minor : Fact Finding; Unrepresented Party)  EWHC 1195 (Fam) (19 May 2017)
- As I have made clear above it was necessary, in this case, to permit F to conduct cross examination of M directly. A number of points need to be highlighted. Firstly, F was not present in the Courtroom but cross examined by video link. Secondly, M requested and I granted permission for her to have her back to the video screen in order that she did not have to engage face to face with F. Thirdly, F barely engaged with M’s allegations of violence, choosing to conduct a case which concentrated on undermining M’s credibility (which as emerges above was largely unsuccessful).
- Despite these features of the case, I have found it extremely disturbing to have been required to watch this woman cross examined about a period of her life that has been so obviously unhappy and by a man who was the direct cause of her unhappiness. M is articulate, educated and highly motivated to provide a decent life for herself and her son. She was represented at this hearing by leading and junior counsel and was prepared to submit to cross examination by her husband in order that the case could be concluded. She was faced with an invidious choice.
- Nothing of what I have said above has masked the impact that this ordeal has had on her. She has at times looked both exhausted and extremely distressed. M was desperate to have the case concluded in order that she and A could effect some closure on this period of their lives and leave behind the anxiety of what has been protracted litigation.
- It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.
- The iniquity of the situation was first highlighted 11 years ago by Roderick Wood J in H v L & R  EWHC 3099 (Fam),  2 FLR 162. It was reiterated in Re B (a child) (private law fact finding-unrepresented father), DVK  EWHC (Fam). Cross examination by a perpetrator is prohibited by statute in the Crown Court, in recognition of its impact on victims and in order to facilitate fairness to both prosecution and defence. In Wood J’s case he called for ‘urgent attention’ to be given to the issue. This call was volubly repeated by Sir James Munby, President of the Family Division in Q v Q; Re B (a child); Re C (a child)  EWFC 31 and again in his ‘View from the President’s Chambers (2016): Children and Vulnerable Witnesses: where are we?‘
- In that document the President highlighted the Women’s Aid Publication: Nineteen Child Homicides. I too would wish to emphasise it:
- “Allowing a perpetrator of domestic abuse who is controlling, bullying and intimidating to question their victim when in the family court regarding child arrangement orders is a clear disregard for the impact of domestic abuse, and offers perpetrators of abuse another opportunity to wield power and control.”
Commenting on this, the President asked ‘who could possibly disagree?’ The proposition, in my view, is redundant of any coherent contrary argument.
- I understand that there is a real will to address this issue but it has taken too long. No victim of abuse should ever again be required to be cross examined by their abuser in any Court, let alone in a Family Court where protection of children and the vulnerable is central to its ethos.
For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.
If Hayden J’s hat was in the ring for replacement of our current President at the end of his term, he may just have lined the brim with lead. The MOJ tend to be squeamish about Judges getting too outspoken. Although I may be wrong and that only happens in Judge John Deed. ( I’m still quietly hoping for Mr Justice Peter Jackson as next El Presidente, although my chief preoccupation is worrying that we might be trading down for [REDACTED REDACTED REDACTED] )
Oh man, I’m now going to be thinking about Mr Justice Knick-Knack all day…. That and imagining Sir James Munby delivering his next Benmusa judgment with a large white Persian cat on his lap.