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Causing avoidable harm: cross-examination and the litigant in person

Family practitioners are experiencing an inconsistent approach to the cross-examination process where a litigant in person is involved, says Kara Swift

18 April 2019

Cross-examination is an unavoidable feature of hearing the evidence, whether it is at a fact finding hearing or a final hearing.

This is how the inquisitorial system works. But there’s no reason why this couldn’t be made safe and suitable for all parties involved.

Mr Justice Hayden expressed his view of the system in Re A (a minor) (fact finding; unrepresented party) [2017] EWHC 1195 (Fam). 

“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… the process is inherently and profoundly unfair. I would go further it is, in itself, abusive,” he said. 

“For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.” 

Inconsistent approach 

With the li...

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