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.
“A stain on the reputation of the family justice system”
You cannot stain what is already in the gutter. The gross injustices perpetrated in the family courts, following corrupt practices in social services are already well documented and much of the public is under no illusions about what is going on. There is very little by way of ‘justice’ in the system. Good mothers are losing their children to lies, distortions, witch hunts and a wholly unbalanced system. People are collecting evidence of social workers lying through their teeth and it’s not isolated incidents, as some like to claim. In lying on documentation related to child in need, or child protection, even if it has not and does not reach a court scenario, social workers (and other professionals feeding into that process by lying) are committing non-oath sworn perjury, which carries a penalty of up to 2 years in jail. It’s high time judges started enforcing this.
While I absolutely agree that having an alleged abuser cross examine their alleged victim really should not happen and it causes all sorts of problems, the one thing that really struck me from that judgment that you quoted was this phrase:-
“She was represented at this hearing by leading and junior counsel”
One side has both leading AND junior counsel and the other side appears to be a litigant in person.
So much for equality of arms
“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.”
The key word, of course, is “perpetrator”!
If the accused is wrongly accused, as frequently happens in “Family” Courts because that’s the only way to secure legal funding for expensive junior and leading counsel, then all the disturbing features of the cross-examination vanish like early morning mist.
Yes, something which got rather lost in the public debate was the importance of deciding allegations and properly testing the evidence. The perverse incentive to make false allegations doesn’t help at all
This is absolutely brilliant. (And very funny.) One of your best, I think!
Chambers of Mark Love 2 Dr Johnson’s Buildings
Let’s assume (because it is usually) is that we are taking of a man seeking to cross-examine a woman, and choose our pronouns accordingly. When are they to be regarded as “abuser” and “victim”?
Here’s a clue: not just when she says so.
And here’s the answer: when, and only when, there has been a previous judicial finding to that effect in proceedings between the parties, on notice, in which both parties were entitled to legal aid subject to means, or both parties were entitle to legal aid regardless of means. Not otherwise, which means findings made since LASPO mostly do not count.
Of course that’s not going to happen. So what evidence should the court rely on?
The answer again: None which has not been tested by cross-examination unless it is corroborated by evidence which is not itself based on what she told the witness. Medical evidence, perhaps, but not simply that her injuries are consistent with what she alleges; only if the witness – who must of course be available for cross-examination – can say that the injuries are only consistent with what she alleges.
It’s not difficult; it must means accepting that men, usually men, are not to be deprived of their homes, their children, their contact with their children, and sometimes half or more of what they have in the world, on untested allegations. It used to be called a level playing field.
Reblogged this on World4Justice : NOW! Lobby Forum..
Are you in *favour* of this movement? The movement to deny those who cannot afford, or who do not trust, lawyers, the right to cross-examine those who make accusations against them??? What sort of values are THOSE?????
Er, no. I am in favour of people who are accused of serious allegations who wish to challenge them being given access to free legal representation like that enjoyed by those who make the accusation. Your point about those who still choose not to be represented is a difficult one and it needs careful thought in any new legislation. I don’t have an answer but it needs hard thought not knee jerk legislation
In this case the woman was clearly forced into yet another very traumatic experience, but I really do struggle to see how we square the presumption of innocence, and the right to challenge your accusers, with protecting someone who, at the start of the trial, is an accuser not a victim. To assume the accused is lying at the start, is literally (and I use that word deliberately) to prejudice the trial.
I wonder whether it really comes down to the judge applying more judgement during the trial as to what is and isn’t fair questioning.
Having said that, would the same line of questioning followed here have been allowed if presented by counsel?
Yes, which is the thing that rather got lost, there has to be proper testing of allegations to make safe conclusions
Who is the worst judge in the family courts? Yes the very worst by a long way is in my very humble opinion His Honour Mr Jusice Hayden ! Congratulations sir !
Anyone read the Christopher Booker column last Sunday?????
Hmmmm…. not sure that’s the best example you can find.
level playing field =non discrimination=same rights for anonymity and cross examination to both accuser and accused
Here is the short article by Christopher Booker .I Wonder why judge Hayden went beserk when he read it !
THE TELEGRAPH Sunday May 21st Christopher Booker
A gifted child in a psychiatric unit is madness
Of all the 100 or more “child protection” cases I have covered over the years, scarcely any has been odder or more troubling than one I have been following in the past two weeks. It centres on a boy, now nearly 16, who has suffered since birth from a series of complex physical disabilities. But mentally, as if in compensation, he is exceptionally bright.
A gifted child in a psychiatric unit is madness
In childhood his intelligence was twice rated by psychologists as in the top 0.002 per cent of the population. Thanks to his parents he was, until recently, given a first-rate education. At a school for gifted children he was ranked with those older than him. When his physical problems worsened, he was educated at home by his mother, with the aid of specialist tutors. He won a place at a public school, and hoped to read physics or chemistry at university.
He has also self-educated through books and the internet, among much else learning several languages, including Japanese and Hindi. He has also bonded with a circle of other very bright boys, older than himself, with whom he kept in constant touch through his phone, discussing everything from world politics to quantum physics.
Then last year his education ceased, when he was removed from his family and placed alone in a strange “respite home”, where at least he was able to keep in constant touch with his parents and friends. But last week even this came to an end, when he was forcibly taken to a secure “psychiatric unit”, specialising in “children with mental health problems”, mainly much younger girls suffering from anorexia.
Far from having any “mental problems”, the boy is the very opposite, and highly articulate. But his iPad and iPhone, I gather, have been confiscated, and he has been told he is now only allowed books suitable for the youngest children. He cannot be visited by his friends, and his mother has been told that she may never see him again.
The need to move him to this place so urgently, when his only wish was to return home, was that the unit’s rules don’t allow it to admit any children after their 16th birthday, which in his case is next month. The most quoted words from the Children Act, under which all this has been done, are those usually paraphrased as “the interests of the child are paramount”. It would be hard to explain to this hyper-intelligent young man how this could possibly apply to his present
I don’t think you and I are ever going to agree about who is the accurate historian out of a High Court Judge and Christopher Booker. Let’s agree to differ.
The sad thing is that the two are in agreement from a historical perspective.The judge does not claim Booker’s article is wrong factually, and Booker adds facts that alter the perspective of the present there being no denial of the horrible conditions under which this boy is kept just the exraordinary claim by this judge that that he will in some way benefit from them !