Family Law

Family analysis: Should a court allow a potential perpetrator of domestic abuse, when they are acting in person, to cross-examine their alleged victim? Does this run the risk of the proceedings themselves being abusive? Or will it unfairly curtail the ability of the accused to put their case? If the court does not allow direct cross-examination, how should it proceed? This was the dilemma the court faced in PS v BP [2018] EWHC 1987 (Fam). Luke Eaton, barrister at 1GC|Family Law, who represented the appellant, looks at this perennial problem.

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What are the practical implications of this case?

The prospect of an alleged abuser cross-examining an alleged victim of domestic abuse is an unappealing one that many, if not all, family lawyers have to grapple with all too regularly. Given the current state of legal aid provision, the rise in litigants in person and a seeming lack of legislative willingness to tackle the issue, it is not a problem that appears to be going away any time soon.

As such, the court is left in a difficult situation—how does it balance the Article 6 rights of the accused while also safeguarding the accuser and allowing them to give their best evidence? This has been a question that has troubled courts for some time—in 2017 Hayden J (Re A (a minor) (fact finding; unrepresented party) [2017] EWHC 1195 (Fam), [2017] All ER (D) 49 (Jun)) commented that ‘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’ – this inquiry ‘exists at every level of our family justice system and is plainly causing real harm and distress’.