Qualified Legal Representatives in the Family Court – is it working?
I can only write about my own experience as a Qualified Legal Representative and the answer to the above is no, not really. The main issue in my experience is that the family court simply cannot secure QLRs for hearings or the required number of QLRs (if the case requires more than one). I have also experienced cases where one party suddenly no longer has legal representation leading up to a contested hearing and the court has not been informed in advance. This has led to some contested hearings being adjourned on the day due to a QLR being required but not having been secured.
No adjournment is ideal as it causes delay in system where delays are almost inevitable due to the difficulties with court listing. In family cases we are all mindful of the ‘delay principle’: In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child. In my experience, as counsel instructed to represent a parent in Children Act 1989 proceedings, I have had a fact finding hearing adjourned now at least twice due to the court not having been able to secure the attendance of a QLR for one parent in the case. There are financial implications of these adjournments where one party has secured their own legal representation on a privately paying basis. There is of course also an emotional impact of these adjournments given the very nature of these types of matters involving allegations of domestic abuse and, more often than not, no contact taking place between a parent and child due to the allegations not yet being determined.
How can the issues be resolved? Unfortunately, the QLR scheme is voluntary therefore in my view unless more legal representatives sign up to become QLRs, the issues are likely to remain. One way to avoid adjournments on the day of a listed hearing where one party has the benefit of legal representation, could be that enquiries are made with the court at least 7 days in advance of a hearing as to whether or not a QLR has been secured for the other party. If a QLR has not been secured, consideration could be given at that time as to an adjournment. However, this still does not resolve the issue of securing a QLR at a later date.
Where a QLR cannot be secured, can the court just revert back to directing an unrepresented party to prepare a list of questions for the court to put to witness(es) on their behalf at a contested hearing? Before appointing a QLR, the court must first consider whether there is a “satisfactory alternative” means for the witness to be cross-examined, or of otherwise obtaining the evidence that the witness might have given under cross-examination. Paragraph 5.3 of Practice Direction 3AB states ‘A satisfactory alternative means to cross-examination in person does not include the court itself conducting the cross-examination on behalf of a party.’ It would appear that the answer to the question is no, the court cannot simply revert back to directing an unrepresented party to prepare a list of questions to be asked of witnesses by the court. However, under paragraph 6.2 of Practice Direction 3AB, before directing the appointment of a QLR, “the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a court-appointed qualified legal representative to represent the party’s interests”. Arguably, due to issues in securing QLRs, the court may reach the conclusion it is not in the interests of justice for a QLR to be appointed for this reason, especially in cases where hearings may have already been adjourned once for the same issue. The court may then go on to consider 5.3 PD3AB and the overriding objective. Could the answer and way forwards be for the court to appoint a QLR but also to direct the unrepresented party to prepare a list of questions in any event should a QLR not be secured? This remains to be seen but on my reading of 5.3PD3AB, it is unlikely.
How easy is it to become a QLR? It is easy for me to say that the issues will not be resolved until we have more lawyers signing up to become QLRs but, in my experience, it is not that ‘easy’ to become a QLR. To be considered eligible, QLRs “must have a current practising certificate and have undertaken advocacy and vulnerable witness training (or have made a commitment to attend such training within six months of having registered on the court list of QLRs that is provided or approved by their professional body. They must also have the necessary skills and experience in cross-examining vulnerable witnesses in contested hearings.” Additionally, QLRs “with additional specialist domestic abuse training on matters such as coercive and controlling behaviour, economic abuse, psychological abuse and post-separation abuse are also eligible to undertake this work.” When I registered to become a QLR, the difficulty I experienced was finding a vulnerable witness training course with availability – the closest course to my location was due to take place some 5 months after I had registered to become a QLR however, this was oversubscribed and so no space could be offered to me. Fortunately, I was able to secure attendance on an MOJ accepted course in the new year allowing me to officially join the court list as QLR.
What does the future hold for the QLR scheme? This remains to be seen.