McFarlane: Protections would be turned on their head by allowing solicitor to keep acting
The Family Court has terminated the appointment of a solicitor to cross-examine a mother on behalf of the father because he is also instructed to act for the father in criminal proceedings.
Sir Andrew McFarlane, president of the Family Division, said there should not be a “blanket prohibition” upon any court-appointed qualified legal representative (QLR) who is also instructed as a solicitor or barrister for the same party in parallel criminal proceedings.
But for the court to continue such an appointment would “normally cut right across the aim” of the legislation that prohibits cross-examination of a party or witness by the person who committed a criminal offence against them, is subject to injunction or is the alleged perpetrator of domestic violence against them.
Sir Andrew said: “Whilst a legal professional will be asking questions, rather than the party in person, it is likely that a vulnerable witness will feel, as the mother does in this case, that that lawyer (if they are the instructed criminal defence lawyer) is far more closely identified with the party than a truly independent QLR who has simply come into the case to discharge their duties under part 4B [of the Matrimonial and Family Proceedings Act 1984].”
In the case before him, proceedings under the Children Act 1989 between parents over the future arrangements for their children, a solicitor, Mr Fidler, had been appointed by the court as a QLR to cross-examine the mother on behalf of their father, a litigant in person.
Subsequently, the father was charged with criminal offences relating to domestic abuse, for which the mother is the principal prosecution witness. The father has instructed Mr Fidler as his solicitor for these.
The mother objected to Mr Fidler continuing in the role of QLR and applied for an order discharging his appointment. The matter was transferred to the president to decide.
The mother’s counsel argued that Mr Fidler was no longer capable of acting in an independent capacity in the family proceedings, while the dual role had had “a wholly negative impact upon her feeling of vulnerability in the family proceedings in a manner which is contrary to the aims of the QLR scheme and is likely to diminish the quality of her evidence rather than enhance it”.
The protections contained in the statutory scheme would be “turned on their head” if the court were to continue the appointment of the father’s criminal solicitor as his QLR, he argued.
In opposing the application, Mr Fidler noted that, if the father had directly appointed him to be his QLR or to act as his solicitor in the family proceedings, then the court could not terminate that appointment and the situation would be the same.
Both the Association of Qualified Legal Representatives and the Association of Lawyers for Children made written submissions to the court, arguing that while a QLR should not normally also act for the party in criminal proceedings, this should be decided on a case-by-case basis.
Sir Andrew agreed. The reason to appoint QLRs was to enhance the ability of a vulnerable witness or party to give evidence.
“The essence of a court-appointed QLR is that they will be independent of the prohibited party, and not acting more broadly ‘for’ that party.
The role of a court-appointed QLR is not without professional complication and there is benefit in maintaining a separation between that role and that of an instructed lawyer in order to avoid potential conflict and further ethical or professional complexity.
“For the development that has taken place here to have the impact that it is said to have had on the mother’s already vulnerable state is entirely counter to the stated aim of the provisions.”
In circumstances like this, McFarlane P continued, the court should consider whether the dual role compromised the appearance or actuality of QLR independence, undermined the protective purpose of the QLR scheme, created a real or perceived conflict of interest, or introduced a material imbalance of disclosure or cross-jurisdictional knowledge.
“Whilst each case will fall to be evaluated on its own facts, it is difficult to contemplate many cases where it will be proportionate to continue a lawyer’s appointment by the court as QLR where that lawyer also acts directly for the prohibited party in related criminal proceedings.
“For the court to continue such an appointment will normally cut right across the aim of the provisions in part 4B and PD 3AB, which is to enhance the quality of the evidence of a vulnerable witness and to reduce the potential for additional distress.
“In the circumstances of the present case I was satisfied that Mr Fidler’s appointment by the court as QLR should be discharged and I made an order to that effect providing that, if necessary, he should be replaced by a different QLR appointed by the court.
“In making that determination, no criticism attached to Mr Fidler, who acted appropriately and… assisted the court by making submissions on behalf of the father.”
In a postscript, McFarlane P said Mr Fidler had told the court that, depending on the father’s instructions, he may go on record as the father’s solicitor in the family proceedings.
If the court has discharged the solicitor as QLR doesn’t that present a conflict if he accepts an instruction to go on record? Answers on a post card!