A scheme designed to ensure people representing themselves in court do not have to be questioned by their abuser is failing due to lack of resources, family law experts have said.
Since last year, family and civil courts have been required in certain cases to appoint a qualified legal representative (QLR) so that litigants in person are not cross-examined by the perpetrator or alleged perpetrator of their abuse and vice versa, but there has been a shortage of lawyers signing up to the scheme.
Last week, the president of the family division, Sir Andrew McFarlane, said the Ministry of Justice (MoJ) had been “unable to attract anything like sufficient numbers of advocates to act as a QLR in individual cases”.
A response to a freedom of information (FoI) request by the barristers’ chambers 4PB, shared exclusively with the Guardian, shows that only 113 QLRs have been used in courts across England and Wales since the scheme launched last July.
Mani Basi, a barrister at 4PB, said: “Whilst the QLR scheme had an incredibly noble and important intention, it seems almost inevitable that anything based on barristers volunteering was going to struggle to get off the ground. Failure to appoint a QLR is undoubtedly likely to create more adjournments, delays and wasted costs and resources to an already struggling court system.”
The number of litigants in person has been increasing since cuts to legal aid funding were introduced in 2013, and such cases tend to take longer because they usually need additional time and support, exacerbating the backlog in the courts. The proportion of private law cases in which both parties had legal representation was only 18% in July to September last year.
McFarlane said that “frequent and widespread difficulties are being encountered in finding advocates to act as a QLR”. He said it was “dispiriting and very concerning that the QLR scheme … seems unable to attract anything like sufficient numbers of advocates to act as a QLR in individual cases”.
The 4PB FoI request found that 428 lawyers had registered for the training since the scheme started. Of these, 258 had completed the training and 113 had been used, some in more than one case.
The number of open private law family cases stood at 47,700 in March, official figures show, and cases are taking 45.7 weeks on average to complete.
Lucy Hadley, the head of policy at Women’s Aid, said: “We welcomed the ban on this abhorrent practice in the Domestic Abuse Act but we remain unconvinced the implementation of these measures effectively protects survivors of domestic abuse. The government must ensure that there is enough training and funding to enable lawyers to become qualified legal representatives and stop this state-sanctioned abuse. Without oversight of the implementation of these commitments and proper scrutiny, women are left unprotected, terrified and subject to further abuse.”
Before QLRs were introduced, the solution was usually for judges or magistrates to put questions to a witness directly. Basi said that if judges struggled to find a QLR, they may consider reverting to putting the questions themselves, something McFarlane also suggested could happen if there was no alternative. But Basi said this may leave a judge open to challenge by a litigant in person unhappy that they were denied access to a QLR when people in other cases were not.
“It might be that in some areas there is a greater availability of QLRs than in others and therefore the success of the scheme may vary from region to region – a potential postcode lottery,” Basi said. “Importantly, there is a greater awareness in respect of domestic abuse, but these individuals need support to bring their case and these issues on the ground with the QLR scheme require more consideration to ensure it works and justice is served.”
An MoJ spokesperson said: “The latest figures show there have been 350 cases where a qualified legal representative has been appointed, demonstrating the scheme’s success in helping to protect vulnerable people from being retraumatised at court.”
