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RE: Z (Prohibition on Cross-examination: No QLR) – What happens if no QLR can be found despite diligent searches?

Within his judgment, Sir Andrew McFarlane reminds us of the QLR process, guidance and, most importantly, the issue many judges and magistrates are currently facing on a daily basis – what to do when a QLR is required but none is available?

Key points to take away from this judgment include:

  • Cases should not be permitted to drift; when directing the appointment of a QLR, a requirement should be included in the court's order directing that the case be returned to the judge/justices for further directions if, after 28 days (or whatever reasonable period is chosen), the court has not succeeded in appointing the QLR. The principal options facing a court at the directions hearing are likely to be:
    • A further adjournment in the hope that a QLR may be found;
    • An adjournment to allow one or both parties to engage their own advocate;
    • Reviewing the need for the vulnerable party to give oral evidence and be cross-examined. This will include reviewing the need for there to be a fact-finding hearing in the proceedings;
    • Considering any other alternative means of avoiding in person cross-examination between the relevant parties;
    • The court itself taking on the task of asking questions in place of the in person party.
  • It does not follow that, if no QLR is available, the court is automatically required to conduct the questioning itself. It is important that all possible alternative options are reviewed at that point in the proceedings.
  • The court should take account of PD3AB paragraph 5.3 BUT PD3AB, paragraph 5.3 is not, however, black-letter law. The fact that the PD does not include questioning by the court as a satisfactory alternative, does not, as a matter of law, prevent the court undertaking the task if it considers that, in the interests of justice, it must nevertheless do so.
  • In the context of a decision on how to proceed in the absence of a QLR, FPR 2010 r1.1(2)(a), (b) and (c) are likely to be of particular relevance.
  • The need to ensure that the parties are on an equal footing coupled with the need to bring the proceedings to an expeditious and fair conclusion in a proportionate manner, is likely to lead a court to conclude that there is no other alternative but for it to ask the necessary questions.
  • If the court decides to abandon further attempts to appoint a QLR, the previous direction appointing one must be discharged and the reasons for discharge should be very shortly recorded on the face of the order and/or in a short judgment.
  • Where a judge is required to ask questions on behalf of one or both parties, he or she must guard all the more against being drawn into the arena so as to lose objectivity and diminishing their ability properly to evaluate and weigh the evidence.
  • A further need for caution may arise from the need for the judge to avoid taking an important point on behalf of one party which that party has not, themselves, raised (see Villiers v Villiers [2022] EWCA Civ 722 at paragraph 212). During a fact-finding hearing, it must be expected that a judge may spot a point that has not been raised by either party, but requires clarification. In such circumstances, provided that the manner in which the judge raises the point and questions the party or parties about it is fair, judges should not feel that they are prevented from doing so.
  • In every case fairness requires the court to be very open with the parties as to the process that is going to be adopted by explaining what is to happen, step by step, at the start in short straight forward terms.
  • The court should explain that it is taking on the role of asking questions in order for the hearing to proceed in the absence of a QLR, and where there is no other satisfactory alternative - courts should refer to it as the court 'asking questions that the other party wishes to have asked', or a similar phrase (rather than using the phrase 'cross-examination').
  • Sir Andrew McFarlane agreed with the approach of Hayden J in PS v BP [2018] EWHC 1987 (Fam):
    • Once it becomes clear to the court that it is required to hear a case "put" to a key factual witness where the allegations are serious and intimate and where the witnesses are themselves the accused and accuser, a "Ground Rules Hearing" (GRH) will always be necessary;
    • The GRH should, in most cases, be conducted prior to the hearing of the factual dispute;
    • Judicial continuity between the GRH and the substantive hearing is to be regarded as essential;
    • It must be borne in mind throughout that the accuser bears the burden of establishing the truth of the allegations. The investigative process in the court room, however painful, must ensure fairness to both sides. The Judge must remind himself, at all stages, that this obligation may not be compromised in response to a witnesses' distress;
    • Where the factual conclusions are likely to have an impact on the arrangements for and welfare of a child or children, the court should consider joining the child as a party and securing representation. Where that is achieved, the child's advocate may be best placed to undertake the cross-examination.
    • If the court has decided that cross-examination will not be permitted by the accused and there is no other available advocate to undertake it, it should require questions to be reduced to writing. It will assist the process, in most cases, if 'Grounds of Cross-Examination' are identified under specific headings;
    • A Judge should never feel constrained to put every question the lay party seeks to ask. In this exercise the Judge will simply have to evaluate relevance and proportionality;
    • Cross-examination is inherently dynamic. For it to have forensic rigour the Judge will inevitably have to craft and hone questions that respond to the answers given. The process can never become formulaic;
    • It must always be borne in mind that in the overarching framework of Children Act proceedings, the central philosophy is investigative. Even though fact finding hearings, of the nature contemplated here, have a highly adversarial complexion to them the same principle applies. Thus, it may be perfectly possible, without compromising fairness to either side, for the Judge to conduct the questioning in an open and less adversarial style than that deployed in a conventional cross-examination undertaken by a party's advocate.'

Sir Andrew McFarlane concludes his judgement by offering the following practical points for courts to consider when appointment a QLR or when preparing to put questions itself:

  • Whilst there is value in the QLR attending court for the ground rules hearing so that they may meet the party on whose behalf they will be asking questions, where this is impractical, and where holding the hearing remotely means that a QLR who could not otherwise act can be appointed, it should be acceptable for the QLR to attend the ground rules hearing remotely;
  • The default position for the full hearing should be for the QLR to be in attendance at court, rather than joining remotely, as the overall effectiveness and fairness of the process is likely to be diminished if they are not in the courtroom;
  • In all cases (whether there is a QLR or not) at the ground rules hearing, or earlier, the court should direct that the prohibited party should submit a clear statement shortly stating the allegations, facts or findings that they seek to establish;
  • In all cases, the prohibited party should be required to file a written list of the questions that they wish to have asked prior to the main hearing. The list should go to the QLR, or to the court if there is no QLR, but not to the witness or other parties. This process should not prevent the prohibited party from identifying additional questions that may arise during the hearing.

The judgment can be found here - Z, Re (Prohibition On Cross-Examination: No QLR) [2024] EWFC 22 (09 February 2024) (bailii.org)