Judge finds cross-examination of abused wife by accused “abusive” in itself

A High Court judge has recently commented that in any future hearings he overseas he will refuse to allow an alleged domestic abuser to cross-examine in person, the alleged victim of the case. Mr Justice Hayden’s statements have sparked renewed comments and debate on cross-examination of witnesses in person during family court proceedings, a practice which is banned in the criminal courts.

Cross examination of abused wife “a stain on justice system”

Hayden J said he found it “extremely disturbing” that a father, accused of domestic violence, could personally cross examine his former partner and mother to their 11-year old son. The father was representing himself in the family court. Hayden J said it was a necessary part of the judicial process to permit the cross-examination directly, although the judge did allow this to be conducted via video link with the mother facing away from the screen.

Hayden J commented that “nothing had masked the impact of the ordeal of the cross-examination, and [the mother] looked at times exhausted and extremely distressed” despite not being present in the courtroom. Hayden J described the mother as “articulate, educated and highly motivated to provide a decent life for herself and her son” but was concerned she was facing an “invidious choice”. He added “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… the process is inherently and profoundly unfair. I would go further it is, in itself, abusive.”

Points up for debate

Hayden J’s comments have given rise to a number of interesting and widely debated points. There is a balance to be struck between the rights and well-being of the alleged victim and a fair trial of the accused. It is a very fine line to tread particularly in highly sensitive cases such as those alleging domestic abuse, as it is the trial itself that establishes any guilt on the part of the accused and any truth to the allegations. The accused has a right to defend the accusations, confront the accuser and cross-examine witnesses.

Despite his arguably unclear wording, the essence of the point Hayden J is making is surely one of practice rather than principle. There is no question that the accused is entitled to a fair trial including full cross-examination of the witnesses and confrontation of the accuser. The point is not whether there should be a cross-examination; there must be. It is the manner in which the cross-examination is conducted that is at issue.

Distinction with criminal cases

The point of practice has been debated for some time. Hayden J makes reference to calls having been made for years to end cross-examination of abused witnesses and that any disagreement to the notion was “redundant of any coherent contrary argument”.

In criminal proceedings involving domestic violence, the defendant is forbidden from examining the complainant. Should the defendant appear unrepresented at trial, the court will appoint a barrister to conduct the cross-examination, at the public’s expense. As such, the defendant’s right to challenge the case against him is not impaired as cross-examination is a vital part of the case but the alleged victim is not subjected to further “abuse” by facing probing questions from an ex-partner. The justice system seems at odds not to have applied this straightforward arrangement to the family courts.

General election shelved change in domestic violence procedure

Earlier this year, the government looked at the provisions in criminal law preventing alleged perpetrators from cross examining alleged victims in criminal proceedings and how this could be applied in the family courts. The Lord Chancellor was set to end the cross-examination of domestic violence victims by their abusive ex-partners in the family courts under the Prisons and Courts Bill. However, the Bill was scrapped in April, ahead of the dissolution of Parliament following the Prime Minister’s call for a snap general election.

Yet again, legislative changes to the treatment of alleged domestic violence victims in court have been postponed. Although the proposed Bill was seen as “mop up” legislation dealing with a wide range of controversial legislative changes on other areas of law, the changes relating to cross-examination in family law courts were less contentious and long overdue. It is unlikely that these distinct provisions will be considered in the foreseeable future by any new government, particularly as they were wrapped up with more controversial proposed legal changes.

Jane Robey, chief executive of National Family Medication said, “we are naturally disappointed that a great deal of important government work in the field of family law is again being kicked into the long grass. It looks likely that, whatever the outcome of the election, there will be changes in ministerial positions which tends to make it hard for new ministers to speedily pick up the thread of work that’s been developed in the recent past, lengthening delays to change.”

Impact of the general election

Shortly before the general election, the Law Society’s president, Robert Bourns said “we hope that the new government elected in June will make an absolute priority in re-introducing the proposals providing protection for victims of domestic violence from being cross examined by their abusers in the family court…”

Irrespective of one’s political views, the outcome of last week’s general election will unfortunately not be conducive to bringing in new legislation on this issue in the foreseeable future.

Rosie Bracher are specialist family law solicitors based in Barnstaple. We are vastly experienced in domestic violence cases and all areas of family law. We have the knowledge and expertise to advise support and guide you throughout any family law case. Please contact our office on 01271 314 904 and arrange to speak to one of our team in confidence.

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