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Yaa Dankwa Ampadu-Sackey shares some observations from a practitioner’s perspective on the shortage of Qualified Legal Representatives
In RE: Z (Prohibition on Cross-examination: No QLR) [2024] EWFC 22, the President of the Family Division provided guidance on the approach the Family Court should adopt where the statutory prohibition on cross-examination applies, but a Qualified Legal Representative (QLR) cannot be found despite diligent searches: ‘Cases should not be permitted to drift whilst an open-ended search for a QLR is undertaken.’
Securing the services of a QLR is an increasingly common problem. In RE: Z, Sir Andrew McFarlane noted: ‘the court office in Newcastle had undertaken no fewer than 120 different communications by email or telephone in an attempt to find a QLR, yet none could be found who was willing or available to take on the case.’ The guidance concludes: ‘While it is to be hoped that, in time, the continued training programme and the ability to claim travel expenses will increase the availability of QLRs, there will inevitably remain some cases where there is no alternative but for the court to ask the questions itself. Unsatisfactory though that process plainly is...’
In June 2022, I successfully registered to the HM Courts & Tribunals Service (HMCTS) list of QLRs who may be appointed by the court to undertake cross-examination work. I have since received 685 emails from various court centres inviting me to accept instructions as a QLR, which I have been able to accept in 20 cases due to other professional commitments. Of these, five had to be relisted due to a lack of scrutiny before the appointment of the QLR; two settled at the pre-trial review stage; and 13 were ineffective for a number of reasons (see below) including being vacated due to lack of judicial availability or at the request of one of the parties.
The process for appointing a QLR is not without its issues. My first comment regards the method of email communication. It is my experience that HMCTS staff can send emails to all QLRs across the country where they have been unable to identify a QLR from the local list, regardless of the QLR’s preferences. Consequently, advocates receive a barrage of emails from court centres other than their courts of preference, thereby creating an unnecessary administrative burden for barristers.
Further, the round-robin QLR emails I have received disclose the email addresses of all the QLRs. If this practice is widespread, it risks not being GDPR compliant and should be changed so the QLRs are blind copied. Similarly, the email addresses automatically included in the court order appointing the QLR should be the clerks’ or the firms’ email addresses rather than the QLR’s direct email address. This will help with filtering emails from the litigant in person (LiP) – some of which can be abusive.
Often, emails are received from individual court clerks instead of QLR-dedicated personnel within the court centre. This presents an issue where a QLR needs to return the instructions as the individual court clerk cannot assist with such matters. Thus, chambers’ clerks have often found it a detailed exercise to liaise with the court where a QLR can no longer attend a hearing. Having dedicated personnel to send and receive emails relating to the QLR appointments could be encouraged across all court centres. It is also worth noting that some courts send a single email with all the cases and dates for which a QLR is required. This is helpful and efficient; all courts might consider adopting this sourcing system.
In my view, the initial email sourcing a QLR ought to provide the following information:
Some courts convert attended hearings to remote hearings where it becomes difficult to source a QLR. While remote hearings are not ideal, where they are appropriate and proportionate (i.e., the issues to be determined are such that a remote hearing is suitable), they should be encouraged.
New guidance now makes provision for QLRs to claim for travel costs. This improvement can go further if the following points are considered:
Often, LiPs leave court without fully understanding the role of the QLR. It would be helpful if HMCTS prepared a factsheet in simple language about this role. Where a QLR is appointed, this factsheet could be handed to the LiP at the hearing and confirmed in the recital in the court order.
By way of example, I appeared in a case where the LiP’s lack of understanding of my role as a QLR led to a falling-out, leaving the court to discharge me to search for another QLR. The question thus arises whether a party should be entitled to have the liberty to invite the court to discharge a QLR and source another. Or should the court determine such a request as a formal application and deliver a formal judgment? Perhaps the court should have an automatic right to refuse such a request?
An increasing number of final and fact-finding hearings fall away at the pre-trial review (PTR) stage due to cases being listed before the wrong level of the judiciary/not being adequately pleaded or lack of judicial availability. There is a further issue of inadequate time estimate or poor case management, often due to minimal scrutiny by legal advisers. For example, I appeared as a QLR before magistrates at a PTR where the court had listed a 1.5-day final hearing to deal with 24 allegations, including serious sexual assault, to be heard before the lay bench. This caused further delay for the parties and presented a considerable inconvenience, as I had given up much more lucrative work for the QLR fixture.
Where the court determines that a QLR should be appointed, there should be detailed scrutiny of the issues and a direction for the parties to submit a clear statement stating the allegations, facts, or findings they seek to establish. There should then be a further directions hearing where the court scrutinises the allegations to be determined, statements in support, the bundle, and any third-party evidence/disclosure before listing a PTR and the final hearing.
The issues of delay are further compounded when the court is unable to secure QLRs in cases where it is determined that a QLR ought to be appointed for both parties. To avoid further delay in cases where two QLRs are sought, priority should be given to the party making the most serious allegations and the most vulnerable.
It is worth noting that separate guidance could helpfully be provided in cases where the prohibited party requires a sign or a language interpreter or where the alleged victim is neurodivergent, blind or partially sighted.
Lastly, a comment on the attitude of fellow practitioners toward QLRs. I often hear examples of advocates treating QLRs disrespectfully, as though they are less qualified. This is most unfortunate and colleagues ought to be reminded of the overriding principle of respecting each other. Perhaps the Bar Standards Board may consider a timely review of its rules to include the relevant rules for situations where a QLR seeks to return instructions based on being mistreated by colleagues.
Despite the shortfalls identified above, I am a firm believer in the QLR scheme and take my role seriously because, through the scheme, I can make a real difference in the litigation experience of victims of domestic abuse. I hope that those practitioners reading this piece who are involved in cases where the court is considering making a direction for a QLR to be appointed will remember the practical difficulties for QLRs that I have highlighted, and will do what they can to try to get directions which will ensure that the QLR has the best possible chance of being able to discharge their duties effectively.
Yaa Dankwa Ampadu-Sackey practises exclusively in children law at 4 Brick Court. Her busy practice encompasses the spectrum of private and public law proceedings in which she acts for all parties.
In RE: Z (Prohibition on Cross-examination: No QLR) [2024] EWFC 22, the President of the Family Division provided guidance on the approach the Family Court should adopt where the statutory prohibition on cross-examination applies, but a Qualified Legal Representative (QLR) cannot be found despite diligent searches: ‘Cases should not be permitted to drift whilst an open-ended search for a QLR is undertaken.’
Securing the services of a QLR is an increasingly common problem. In RE: Z, Sir Andrew McFarlane noted: ‘the court office in Newcastle had undertaken no fewer than 120 different communications by email or telephone in an attempt to find a QLR, yet none could be found who was willing or available to take on the case.’ The guidance concludes: ‘While it is to be hoped that, in time, the continued training programme and the ability to claim travel expenses will increase the availability of QLRs, there will inevitably remain some cases where there is no alternative but for the court to ask the questions itself. Unsatisfactory though that process plainly is...’
In June 2022, I successfully registered to the HM Courts & Tribunals Service (HMCTS) list of QLRs who may be appointed by the court to undertake cross-examination work. I have since received 685 emails from various court centres inviting me to accept instructions as a QLR, which I have been able to accept in 20 cases due to other professional commitments. Of these, five had to be relisted due to a lack of scrutiny before the appointment of the QLR; two settled at the pre-trial review stage; and 13 were ineffective for a number of reasons (see below) including being vacated due to lack of judicial availability or at the request of one of the parties.
The process for appointing a QLR is not without its issues. My first comment regards the method of email communication. It is my experience that HMCTS staff can send emails to all QLRs across the country where they have been unable to identify a QLR from the local list, regardless of the QLR’s preferences. Consequently, advocates receive a barrage of emails from court centres other than their courts of preference, thereby creating an unnecessary administrative burden for barristers.
Further, the round-robin QLR emails I have received disclose the email addresses of all the QLRs. If this practice is widespread, it risks not being GDPR compliant and should be changed so the QLRs are blind copied. Similarly, the email addresses automatically included in the court order appointing the QLR should be the clerks’ or the firms’ email addresses rather than the QLR’s direct email address. This will help with filtering emails from the litigant in person (LiP) – some of which can be abusive.
Often, emails are received from individual court clerks instead of QLR-dedicated personnel within the court centre. This presents an issue where a QLR needs to return the instructions as the individual court clerk cannot assist with such matters. Thus, chambers’ clerks have often found it a detailed exercise to liaise with the court where a QLR can no longer attend a hearing. Having dedicated personnel to send and receive emails relating to the QLR appointments could be encouraged across all court centres. It is also worth noting that some courts send a single email with all the cases and dates for which a QLR is required. This is helpful and efficient; all courts might consider adopting this sourcing system.
In my view, the initial email sourcing a QLR ought to provide the following information:
Some courts convert attended hearings to remote hearings where it becomes difficult to source a QLR. While remote hearings are not ideal, where they are appropriate and proportionate (i.e., the issues to be determined are such that a remote hearing is suitable), they should be encouraged.
New guidance now makes provision for QLRs to claim for travel costs. This improvement can go further if the following points are considered:
Often, LiPs leave court without fully understanding the role of the QLR. It would be helpful if HMCTS prepared a factsheet in simple language about this role. Where a QLR is appointed, this factsheet could be handed to the LiP at the hearing and confirmed in the recital in the court order.
By way of example, I appeared in a case where the LiP’s lack of understanding of my role as a QLR led to a falling-out, leaving the court to discharge me to search for another QLR. The question thus arises whether a party should be entitled to have the liberty to invite the court to discharge a QLR and source another. Or should the court determine such a request as a formal application and deliver a formal judgment? Perhaps the court should have an automatic right to refuse such a request?
An increasing number of final and fact-finding hearings fall away at the pre-trial review (PTR) stage due to cases being listed before the wrong level of the judiciary/not being adequately pleaded or lack of judicial availability. There is a further issue of inadequate time estimate or poor case management, often due to minimal scrutiny by legal advisers. For example, I appeared as a QLR before magistrates at a PTR where the court had listed a 1.5-day final hearing to deal with 24 allegations, including serious sexual assault, to be heard before the lay bench. This caused further delay for the parties and presented a considerable inconvenience, as I had given up much more lucrative work for the QLR fixture.
Where the court determines that a QLR should be appointed, there should be detailed scrutiny of the issues and a direction for the parties to submit a clear statement stating the allegations, facts, or findings they seek to establish. There should then be a further directions hearing where the court scrutinises the allegations to be determined, statements in support, the bundle, and any third-party evidence/disclosure before listing a PTR and the final hearing.
The issues of delay are further compounded when the court is unable to secure QLRs in cases where it is determined that a QLR ought to be appointed for both parties. To avoid further delay in cases where two QLRs are sought, priority should be given to the party making the most serious allegations and the most vulnerable.
It is worth noting that separate guidance could helpfully be provided in cases where the prohibited party requires a sign or a language interpreter or where the alleged victim is neurodivergent, blind or partially sighted.
Lastly, a comment on the attitude of fellow practitioners toward QLRs. I often hear examples of advocates treating QLRs disrespectfully, as though they are less qualified. This is most unfortunate and colleagues ought to be reminded of the overriding principle of respecting each other. Perhaps the Bar Standards Board may consider a timely review of its rules to include the relevant rules for situations where a QLR seeks to return instructions based on being mistreated by colleagues.
Despite the shortfalls identified above, I am a firm believer in the QLR scheme and take my role seriously because, through the scheme, I can make a real difference in the litigation experience of victims of domestic abuse. I hope that those practitioners reading this piece who are involved in cases where the court is considering making a direction for a QLR to be appointed will remember the practical difficulties for QLRs that I have highlighted, and will do what they can to try to get directions which will ensure that the QLR has the best possible chance of being able to discharge their duties effectively.
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