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Family judge refuses to hear cases where alleged domestic abusers cross-examine complainants

Practice is ‘a stain on the reputation of our family justice system’, says Mr Justice Hayden

22 May 2017

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A family law judge has vowed never again to hear any cases involving the cross-examination of domestic abuse complainants by their alleged attacker, reiterating the need for legislative change.

‘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,’ said Mr Justice Hayden in a recent judgment.

‘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.’

Hayden J made his comments in the case of Re A (a minor) (fact finding; unrepresented party), in which he allowed A’s father, via video link, to cross-examine A’s mother, who was granted permission to have her back to the video screen.

The judge unambiguously concluded on the evidence before him that the father had physically and emotionally abused the mother but described the cross-examination process as not only ‘inherently and profoundly unfair’, but also ‘abusive’.

Section 47 of the Prisons and Courts Bill proposed prohibiting cross-examination of complainants by the defendant in the family courts but its passing was stalled following the prime minister’s announcement of a snap general election.

Hayden J used his judgment to acknowledge that progress was being made but criticised the time it has taken to confront the problem.

‘I understand that there is a real will to address this issue but it has taken too long. No victim of abuse should ever again be required to be cross-examined by their abuser in any court, let alone in a family court where protection of children and the vulnerable is central to its ethos.’

Hayden J is the latest family law judge to call for legislative change in this area. Sir James Munby, the president of the family law division, has repeatedly called for a ban on the cross-examination of vulnerable witnesses.

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress

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CROSS EXAMINATION