PS v BP

In a fact-finding hearing involving serious domestic-abuse allegations, a judge who undertakes questioning on behalf of an unrepresented alleged perpetrator must put that party’s case fully, fairly and with proper forensic discipline. The process must protect both the alleged victim and the accused party’s right to a fair determination.

Direct cross-examination by an alleged perpetrator is not automatically prohibited. The court must assess whether the quality of the witness’s evidence is likely to diminish if questioning is conducted by the accused and likely to improve if it is prohibited. A ground rules hearing will generally be necessary. Failure to provide effective testing of the evidence may fundamentally undermine the fact-finding decision.

The appellant father sought findings concerning allegations of rape and strangulation made by the respondent mother in private-law child-arrangements proceedings. The father was unrepresented and the mother was represented. At the fact-finding hearing, the judge prohibited the father from cross-examining the mother directly and instead questioned her on his behalf.

The judge limited the allegations, controlled the questioning, delivered judgment shortly afterwards and made adverse findings. The father appealed, arguing that the questioning had been inadequate and that the resulting fact-finding process was unfair. The central issues were how a family court should manage questioning where an alleged perpetrator is unrepresented, and whether the hearing had provided a fair and effective opportunity to challenge the allegations.

1. Appeal allowed. The fact-finding hearing was fundamentally flawed. The case was directed to be reheard before a High Court judge of the Family Division.
2. Where a judge undertakes questioning on behalf of an unrepresented party, the judge must put that party’s case fully, properly and fairly. The questions must have sufficient preparation, sensitivity and forensic discipline. They must respond to the answers given and must effectively challenge the opposing evidence. A judge must not allow an adverse impression of an unrepresented party’s personality or demeanour to impair that party’s entitlement to a fair trial.
3. The Family Court’s investigative and non-adversarial character does not remove the burden on the party making allegations to prove them to the civil standard. Nor does it permit the court to protect an alleged victim by curtailing the effective testing of serious allegations. Evidence of demeanour is not a substitute for careful analysis of the substance and reliability of the evidence.
4. Direct questioning by an alleged perpetrator is not automatically barred. By parity of reasoning with section 36 of the Youth Justice and Criminal Evidence Act 1999, the court should consider whether the quality of the witness’s evidence is likely to be diminished if questioning is conducted by the accused and likely to be improved if direct questioning is prohibited. In family proceedings those factors may be divisible, and the court must also consider the absence of any routine mechanism for providing an advocate.
5. In cases involving serious and intimate allegations between an accuser and alleged perpetrator, a ground rules hearing will always be necessary. It should ordinarily take place before the factual hearing, with judicial continuity. The court must consider the support required by each party, possible written questions, questioning by the judge or another advocate, representation of the child where appropriate, and the effect of the process on the child’s welfare. These observations were offered as practical assistance, not as formal guidance.
6. The first-instance judge’s questioning was superficial, overly simplified and insufficiently probing. The mother’s evidence was not satisfactorily challenged, and the judge’s conclusions were substantially based on demeanour without adequate analysis of corroborative material. The findings could not safely stand.

• High Court (Family Division): appeal from findings and orders made by His Honour Judge Scaratt sitting in the Family Court at Canterbury. The appeal was allowed and the case was transferred for rehearing before a High Court judge.