On 30 December 2016, Sir James Munby, President of the Family Division, released a statement articulating ‘the pressing need to reform the way in which vulnerable people give evidence in family proceedings’. Family justice, he said, ‘lags woefully behind the criminal justice system’.

The problem arises where an alleged abuser (B: generally, though not invariably, male) personally cross-examines the victim (A) in (say) domestic violence proceedings, including, as the Guardian has said, ‘tormenting’ her in court. This happened in H v L and R [2006] EWHC 3099 (Fam), where a father (ie, B) wanted to cross-examine his child’s abused mother. Roderic Wood J ‘invite[d] urgent attention’ (para 25) to judges being given power to appoint a publicly funded advocate as under Youth Justice and Criminal Evidence Act 1999 (YJCEA) s38(4). Over 10 years later, under pressure from the press, the justice secretary, Liz Truss, has finally ordered a review.

In reality, however, the problem goes deeper than Truss’s review. In 2014, a working group was set up to consider generally the evidence of witnesses and parties (eg, in the position of A) where its quality might be ‘diminished’ in court. The Vulnerable Witnesses and Children Working Group produced draft rules in mid-2015 that owe much to the YJCEA, but still nothing has been formalised.

Munby P reviewed the work of this group in his 16th View from the President’s chambers (January 2017) on children and vulnerable witnesses. This View was accompanied by Cobb J’s report (dated 18 November 2016), Review of Practice Direction 12J FPR 2010 Child Arrangement and Contact Orders: Domestic Violence and Harm – report to the President of the Family Division (an existing – often judicially ignored – practice direction, but one that does not deal with the concerns in this article). Munby P’s View is long on what has been done, but short on specific ideas for law reform.

In civil proceedings, though, the situation is less clear. Munby P’s December 2016 statement continues: judges in family proceedings cannot act because ‘it requires primary legislation and would involve public expenditure’. Supreme Court authority, however, casts doubt on this. Much can be done by judges under the common law, said Lady Hale in Re W (children) (abuse: oral evidence) [2010] UKSC 12 (para 28), suggesting ‘an early video’d cross-examination … cross-examination via video link [or] putting the required questions to her through an intermediary’.

But what of funding?

If B’s cross-examination genuinely ‘diminishes’ A’s evidence and denies her a fair trial, her rights under European Convention on Human Rights article 6(1) are engaged. If legal aid is not available (ie, the case is outside Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) Sch 1 paras 11–13 (domestic violence etc)), A should apply for exceptional case funding (LASPO s10(3); R (Gudanaviciene and others) v Director of Legal Aid Casework and Lord Chancellor [2014] EWCA Civ 1622). Questions regarding resources can be addressed under the present law, whatever Munby P and Truss’s review say.

Witness/party protection and fair trial rights depend on:

If this is right, A must be protected by special measures or an intermediary (eg a s38(4) advocate): is her trial fair without this? If the answer is ‘no’ then A’s fair trial rights are engaged and LASPO s10(3) may apply. Procedural issues then fall into two categories:

The solution to the issues in the second category (especially special measures) is proactive court case management. Category 1, meanwhile, represents the Truss review problem. Funding, however, is available – now – from an existing certificate (LASPO Sch 1 paras 11–13). If legal aid under LASPO Sch 1 paras 11–13 is not available, and this would result in the quality of A’s evidence being ‘diminished’ and a fair trial being threatened, article 6(1) is engaged and s10(3) may bite. Regardless of which category (above) the procedural issues fall under, can YJCEA s38(4) be applied by analogy in family proceedings? And, if so, can it be funded by legal aid?

With Criminal Procedure Rules 2015 Pt 23, s38(4) provides a model for court advocate appointment. B has a fair trial: his ‘accuser’ is professionally cross-examined. The following argument for a similar procedure in family proceedings could be tested in the Family Division, alongside Lady Hale’s comments in Re W at para 28: