K v P (Criminal Solicitor as Court-Appointed QLR)

These proceedings under the Children Act 1989 between parents over the future arrangements for their children are listed for a fact-finding hearing on a future date in the Family Court. Mr Fidler, a solicitor, has been appointed by the court as a Qualified Legal Representative [‘QLR’] to cross-examine the children’s mother on behalf of their father, who is a litigant in person. Subsequently, the father has been charged with criminal offences relating to domestic abuse. The mother is the principal prosecution witness in those proceedings. The father has instructed Mr Fidler to represent him as his solicitor in the criminal proceedings. In those circumstances the mother objects to Mr Fidler continuing in the role of court-appointed QLR in the Family Court and she has applied to the court for an order discharging Mr Fidler’s appointment, and it is that application which has been transferred to me for determination.

In cases where one party to Family proceedings alleges that the other party has been abusive to them, it has long been recognised that there is a need to acknowledge the vulnerability of the alleged victim within the court process, and a corresponding need for special measures to be taken within the proceedings to protect that party from further harm. Over the past two decades, the practice within the Family Court has increasingly improved in this regard as a result of formal guidance, Practice Directions, rule changes, primary legislation and training for judges and lawyers. A major element in this patchwork of measures is the Domestic Abuse Act 2021 [‘DAA 2021’]. The DAA 2021 is a wide-ranging statute which includes, at s 65, the insertion of a new Part 4B into the Matrimonial and Family Proceedings Act 1984 [‘MFPA 1984’] making provision for the ‘prohibition of cross-examination in person’ in Family Proceedings. The introductory text to the DAA 2021 describes it, amongst other topics, as an Act:

MFPA 1984, Part 4B contains ten sections [ss 31Q-Z], the general aim of which is to prohibit cross-examination by a party acting in person of another party or witness who is the victim of a specified criminal offence for which the potential questioner has been convicted, who is protected by an injunction, or where there is evidence before the court that the party/witness has been the victim of domestic abuse carried out by the potential questioner [MFPA 1984, ss 31R-31T]. Further, the court has power to give directions to prohibit cross-examination where it appears that the quality of a witness’ evidence is likely to be diminished if cross-examination in person takes place, or it would cause significant distress to the witness [MFPA 1984, ss 31U].

Of central focus in the present application is MFPA 1984, s 31W, which makes provision for ‘alternatives to cross-examination in person’:

MFPA 1984, s 31W requires the court to consider possible alternatives to in person cross-examination in stages. Firstly, considering whether there are satisfactory alternative means for cross-examination, or for obtaining the evidence that the witness might have given under cross examination [s 31W(2)]. If not, the court must invite the cross-examining party to appoint their own QLR [s 31W(3)]. A QLR is defined by s 31W(8)(b) as ‘a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience (within the meaning of that Act) in family proceedings.’

Where the party fails to appoint their own QLR, then the court must consider whether it is necessary in the interest of justice for the witness to be cross-examined by a QLR appointed by the court [s 31W(4)+(5)]. Where the court concludes that this is necessary, then it must appoint a QLR ‘chosen by the court’ to undertake the cross-examination [s 31W(6)].

A QLR appointed by the court ‘is not responsible to the party’ for whom they are appointed [s 31W(7)]. By s 31X, provision is made for the payment of the costs of any QLR appointed by the court and there is power for the Lord Chancellor to issue relevant guidance and regulations [ss 31Y and 31Z].

The provisions in MFPA 1984, Part 4B prohibiting cross-examination in person are supported by rules in the Family Procedure Rules 2010 [FPR 2010’], Part 3A and, in particular, by PD 3AB. By para 1.3 of PD 3AB, ‘the court and the parties must … have regard to all other relevant rules and Practice Directions and in particular those referred to in Annex A of this Practice Direction’. Annex A, in turn, lists various specific parts of the FPR 2010 including Part 1: the overriding objective. As is well known, the overriding objective in FPR 2010, Part 1 is aimed at enabling the court to ‘deal with cases justly, having regard to the welfare issues’ and includes, so far as practicable, ‘ensuring that the parties are on an equal footing’. By r 1.2, ‘the court must seek to give effect to the overriding objective when it (a) exercises any power given to it by these rules’.

With respect to a court appointed QLR, PD 3AB, para 6.2(b)(ii) provides:

Finally, PD 3AB, para 8 provides for ‘termination of appointment of a court-appointed QLR’:

Statutory Guidance [‘the Guidance’] has been issued by the Lord Chancellor to support the QLR scheme. Para 1.4 of the Guidance explains the policy background:

Para 2.1 of the Guidance gives some description of the particular role of a court-appointed QLR:

Para 2.3.2 of the Guidance refers to conflict of interest:

Para 3.3 of the Guidance is important as it delineates some of the limits on the court-appointed QLR’s role:

On behalf of the mother, her counsel, Mr Mark De Lane Lea, explained that Mr Fidler had first appeared as the court-appointed QLR for the father at a hearing on 24 January 2025. That hearing had had to be adjourned as, shortly beforehand, it had become known that the father was to face criminal charges arising from his relationship with the mother. By the time of the next hearing, on 25 February, it was known that the father had appointed Mr Fidler as his solicitor in the criminal proceedings. Mr Fidler had arranged for another member of his firm to attend the Family Court hearing as QLR, but, in the event, that associate was unable to attend and, thus, no QLR was present. The mother then raised the issue of Mr Fidler’s dual appointment as QLR and criminal solicitor, the proceedings were adjourned for the present application for termination of the QLR appointment to be determined.

It is of note that the allegations that form the basis of the criminal charges relate to the adult relationship, and are different matters to those raised in the Family proceedings, which relate primarily to the children.

Mr De Lane Lea made the following core submissions:

In summarising his submissions at the oral hearing, Mr De Lane Lea stressed:

On behalf of the father, Mr Fidler, who (with the court’s permission) made submissions on his behalf, argued that the factual circumstances of each case will differ and that there should not be a blanket prohibition on a solicitor acting in criminal proceedings also acting as a court-appointed QLR in a Family case. He pointed to the fact that if he, Mr Fidler, had been appointed directly by the father to be his QLR or to act as his solicitor in the Family proceedings, then the court could not terminate that appointment and the very detriments that the mother now claims exist would, if they are valid, be replicated. The issue for the court is not, therefore, one of principle but of proportionality which will change from case to case.

Mr Fidler made a number of specific submissions in writing and orally:

In response, Mr De Lane Lea confirmed that he accepted that the court could not, or did not need to, go so far as to hold that a solicitor instructed in related criminal proceedings can never act as a court-appointed QLR in the Family Court.

The court has had the benefit of written submissions from the Association of QLRs, prepared by counsel, Paul Chiy (who is also the AQLR chair), and from the Association of Lawyers for Children, prepared by counsel, Martin Downs. I am very grateful to both authors for the thoroughness and thought that they have clearly brought to the task. Their description of the details of the QLR scheme and its operation were a genuine aid both during the oral hearing and in preparing this judgment. The court also received submissions from Right to Equality.

The AQLR cautioned against permitting an individual lawyer to hold the dual role of court-appointed QLR and criminal solicitor. To do so may create the impression that the QLR is acting more broadly in the party’s legal interest, erode the complainant’s trust in the neutrality of the QLR and breach the spirit of the QLR scheme. The essence of the role of the court-appointed QLR is one of impartiality and neutrality. The psychological impact on a victim who sees the QLR as ‘their abuser’s lawyer’ could be significant. A structural separation of these two roles ensures clarity of function and aids due process.

The AQLR, which favours a case-by-case resolution of the issue rather than a blanket prohibition, urges the court to give guidance and respectfully suggests the following text:

“Where a QLR appointed in family proceedings is also instructed as legal representative for the same party in concurrent criminal proceedings arising from the same facts, the court must carefully consider whether that dual role:

(a)

compromises the appearance or actuality of QLR independence;

(b)

undermines the protective purpose of the QLR scheme;

(c)

creates a real or perceived conflict of interest; or

(d)

introduces a material imbalance of disclosure or cross-jurisdictional knowledge.

Where any of the above concerns arise, the QLR should not continue to act in both capacities.”

The ALC submissions, in addition to providing a comprehensive description of the scheme, stress the benefit of separating the roles of QLR and instructed lawyer so as to avoid potential conflict or ethical complexity. The ALC stresses that para 1.4.1 of the Guidance states that: “The purpose of the provisions is to ensure that every victim has confidence that the court will be able to offer them every protection needed to allow them to give their best evidence and participate in proceedings safely.” The aim, as confirmed by other references, is to enhance the vulnerable party/witness in their ability to give evidence, rather than to undermine it. Put another way, the aim is to optimise the quality of the evidence and to minimise the potential for distress.

Overall, the ALC identifies a range of factors which will, or may, be relevant when a court is deciding whether to use its power to terminate the appointment of a court-appointed QLR. In particular, and as I read it in summary of the ALC’s overall approach, it is said:

“The Court may make a reasoned decision to terminate the appointment of a QLR. The focus is on whether it is ‘in the interests of justice’ to do so, informed by the over-riding objective in FPR 2010, r 1.1 of ‘dealing with a case justly, having regard to the welfare issues involved’. The need to do so ‘expeditiously and fairly’ and to ensure ‘parties are on an equal footing’ will be of particular importance.”

At the conclusion of the oral hearing I announced my decision, which was that Mr Fidler’s appointment by the court as QLR in this case was terminated. At that time I gave short reasons for my decision, which I will now expand.

The court plainly has power to terminate the appointment of a court-appointed QLR prior to the conclusion of the proceedings [PD 3AB, para 8.1]. There is, however, no guidance in any of the statutory or ancillary material on the approach that the court should take when deciding whether to exercise that power.

I am in agreement with both parties, and with the position of the AQLR and ALC, that there should not be a blanket prohibition upon any court-appointed QLR who is also instructed as a solicitor or barrister for the same party in parallel criminal proceedings. To hold otherwise would be disproportionate and unnecessary in circumstances where it is clearly permissible for a party to instruct their criminal defence lawyer to be either their directly appointed QLR or lawyer in the Family court.

The focus in cases such as the present is upon the fact that the court hasappointed the QLR, and has done so, as the Introductory Text to DAA 2021 indicates, with the explicit aim of enhancing the ability of a vulnerable witness or party to give evidence. If the knowledge that the appointed QLR is also the other party’s criminal defence lawyer has the opposite effect and, as is said to be the case here, may have the effect of increasing the witnesses vulnerability, inhibiting their ability to give evidence or diminishing its quality, then the aim of the legislative scheme is likely to be thwarted – or to put it in Mr De Lane Lea’s apt phrase, ‘turned on its head’.

Under MFPA 1984, Part 4B, Parliament has prohibited cross-examination in person of victims of crime, those protected by injunctions and, where there is evidence of domestic abuse, victims of that abuse [MFPA 1984, ss 31R-31T]. In other cases, the court may prohibit cross-examination in person where the quality of that person’s evidence is likely to be diminished if in person questioning takes place, or will be improved if a direction is made, and where in person cross-examination will cause the witness significant distress [s 31U]. That is the context in which Part 4B is set and, 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.

As paragraphs 2.1 and 3.3 of the Guidance explain in detail, there is a contrast between a QLR directly appointed by the cross-examining party, or their instructed lawyer, and a court-appointed QLR. In the former circumstances the QLR or lawyer will have a contractual, ‘lawyer-client’, relationship with the party and will be professionally responsible to them, whereas a court-appointed QLR ‘is not responsible to the party’ [s 31W(7)] and does not have a contractual relationship with them. A court-appointed QLR ‘should not take instructions from the prohibited party in the manner that a party’s own lawyer ordinarily would’ [para 2.1]. A further distinction between the two categories is that the court is given a significant degree of control over the manner in which a court-appointed QLR is engaged [PD 3AB, para 7] in addition to the court’s ordinary case management powers which are of general application. The various points made by Mr Fidler about the process that would apply if the QLR were directly appointed or if a solicitor were instructed are correct, but, with respect, they miss the point that a court-appointed QLR is in a different position in that the court itself has made the appointment in order to reduce vulnerability and enhance the quality of evidence by engaging a lawyer in an essentially neutral functional role. If that lawyer then takes on a different additional role, then the circumstances supporting the court appointment may change and the court should consider terminating the appointment and choosing a different QLR to act if there is a continuing need to do so.

A further justification for considering termination of the court appointment where the lawyer becomes formally instructed in parallel proceedings is, as the AQLR submissions point out, that the structural separation of these two roles, which enhances clarity of function and aids due process, would be lost.

The submissions of the AQLR and ALC, as I have summarised them, are well placed. 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 [Guidance para 1.4.1].

Drawing matters together, it must be the case that, where a court-appointed QLR is or becomes the directly instructed lawyer for a prohibited party in parallel criminal proceedings, the court will give careful consideration to the question of whether the court appointment should be discharged. I gratefully accept the list of factors suggested by the AQLR as being relevant, namely whether the dual role:

For the reasons that I have given, and 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, as I have indicated, assisted the court by making submissions on behalf of the father.

At the conclusion of the oral hearing, following the decision to discharge his appointment as QLR, Mr Fidler informed the court that, depending on the father’s instructions, he may henceforward go on record as the father’s solicitor in the ongoing Family proceedings.