Melissa Vaughan is a member of Oriel Chambers, family team.
Here Melissa Vaughan provides guidance and information on how the family court are adapting to the provisions of the Domestic Abuse Act 2021.
If you would like any further assistance in any of the topics arising from this article please do not hesitate to contact our clerks at clerks@orielchambers.co.uk
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In the last few weeks, many practitioners will have noticed a flurry of activity in the family courts all trying to adapt to the fact that s.65 of the Domestic Abuse Act 2021 now prohibits the cross-examination of an alleged victim of domestic violence by a perpetrator. This impacts all cases issued after 21st July 2022.
Despite, the same being prohibited in criminal courts for some time, family courts previously took a different approach. Often, we would see family courts dealing with such matters by having the alleged perpetrator (a litigant in person) drafting questions in writing that they wished to raise of their alleged victim before the final hearing and/or fact find, and those questions would then be asked by the Magistrates or Judge on their behalf. This is no longer permitted, and the court must now consider the appointment of a Qualified Legal Representative (‘QLR’) to ask questions on behalf of the alleged perpetrator, in such circumstances. This presents as a far more satisfactory position to retain the independence of the judiciary.
Currently, there are very few advocates who have signed up to the QLR scheme and until recently, this issue has rarely raised its head. However, we are now at the stage where several applications have now been issued after the 21st July 2022 and to which this scheme now applies. Practitioners need to be live to this and consider whether a QLR should be appointed. This should be identified at the pre-trial stage before any finding of fact hearing commences.
Given that the prohibition of cross examination provisions are now in force, it was necessary for the orders to be made available forthwith. A series of draft orders addressing these requirements have been prepared by the Ministry of Justice after consultation with relevant stakeholders and reviewed by the Standard Orders Group. Mr Justice Peel published the standard orders on 15th February 2023. For ease, the link to the standard orders can be found below.
These orders shall henceforth apply until further notice.
