K v P (Criminal Solicitor as Court-Appointed QLR) [2025] EWFC 321

[2025] EWFC 321Case No ME23P01019
IN THE FAMILY COURT
Venue AT THE ROYAL COURTS OF JUSTICE, Royal Courts of Justice, Strand, London, WC2A 2LLDate 6 th October 2025
Before
Sir Andrew McFarlanePresident of the Family Division
Between
KClaimantP (Criminal Solicitor as Court-Appointed QLR)Defendant
K v P (Criminal Solicitor as Court-Appointed QLR)
Hearing Hearing date: 30th June 2025
Mark De Lane Lee (instructed by Taylor Rose MW) for the Applicant
The Respondent appeared in person supported by Mr Fidler as QLR
Approved JudgmentThis judgment was handed down remotely at 10.55am on 6 th October 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Sir Andrew McFarlane P:

[1]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. Court-appointed QLR’s in Family Proceedings[2]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: ‘to make provision for the granting of measures to assist individuals in certain circumstances to give evidence or otherwise participate in civil proceedings; to prohibit cross-examination in person in family or civil proceedings in certain circumstances;[3]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].[4]Of central focus in the present application is MFPA 1984, s 31W, which makes provision for ‘alternatives to cross-examination in person’:
‘31W Alternatives to cross-examination in person (1) This section applies where a party to family proceedings is prevented from cross-examining a witness in person by virtue of any of sections 31R to 31U. (2) The court must consider whether (ignoring this section) there is a satisfactory alternative means— (a) for the witness to be cross-examined in the proceedings, or (b) of obtaining evidence that the witness might have given under cross-examination in the proceedings. (3) If the court decides that there is not, the court must— (a) invite the party to the proceedings to arrange for a qualified legal representative to act for the party for the purpose of cross-examining the witness, and (b) require the party to the proceedings to notify the court, by the end of a period specified by the court, of whether a qualified legal representative is to act for the party for that purpose. (4) Subsection (5) applies if, by the end of the period specified under subsection (3)(b), either— (a) the party has notified the court that no qualified legal representative is to act for the party for the purpose of cross-examining the witness, or (b) no notification has been received by the court and it appears to the court that no qualified legal representative is to act for the party for the purpose of cross-examining the witness. (5) The court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a qualified legal representative appointed by the court to represent the interests of the party. (6) If the court decides that it is, the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the party. (7) A qualified legal representative appointed by the court under subsection (6) is not responsible to the party. (8) For the purposes of this section— (a) a reference to cross-examination includes a reference to continuing to conduct cross-examination; (b) “qualified legal representative” means 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.’
[5]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.’[6]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)].[7]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].[8]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’.[9]With respect to a court appointed QLR, PD 3AB, para 6.2(b)(ii) provides:
‘(ii) if the court decides that it is in the interests of justice, [the court must] choose and appoint a qualified legal representative, from the court-maintained list of qualified legal representatives, to cross-examine the witness and make directions for such appointment.’
PD 3AB, para 7 then gives detail concerning directions that the court may give to a court-appointed QLR:
‘7.1 Unless the court directs otherwise, the directions that the court gives under paragraph 6.2(b)(ii) must— (a) specify the witness or witnesses that are to be cross-examined by the court-appointed qualified legal representative; (b) provide for the court-appointed qualified legal representative to be given access to the full court bundle or such parts of the court bundle as the court directs; (c) specify the date by when the court-appointed qualified legal representative is be given access to the court bundle under paragraph (b); and (d) where there is no court bundle— (i) provide for the court to prepare and provide the court-appointed qualified legal representative with a court bundle; and (ii) specify the date by when the bundle should be provided. 7.2 The directions the court gives under paragraph 6.2(b)(ii) may specify which hearing or hearings or which part or parts of any hearing the court-appointed qualified legal representative is required to attend. 7.3 The court may give such further directions as are necessary to assist the court-appointed qualified legal representative to carry out the cross-examination. 7.4 Before making any such directions, the court may invite representations from the party and the witness in writing or at a hearing.’
[10]Finally, PD 3AB, para 8 provides for ‘termination of appointment of a court-appointed QLR’:
‘8.1 The appointment of a qualified legal representative appointed by the court terminates— (a) at the conclusion of the proceedings; or (b) when the court so orders. 8.2 Following termination, unless the court directs otherwise, the qualified legal representative must be notified of the outcome of the hearing by the court. Notification may be by the court sending to the qualified legal representative a copy of the order, any reasons, the judgment or transcript.’
It is, thus, clear that, in contrast to a QLR directly appointed by the cross-examining party, the court has a significant degree of control over the manner in which a court-appointed QLR is to be engaged in discharging their role in the proceedings and, in particular, that the court has the power to terminate the appointment.[11]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:
‘The amendments to the 1984 Act arose from a growing recognition amongst the judiciary, practitioners, domestic abuse specialists and Government that existing court procedures did not adequately protect victims of abuse in the family and civil courts.’
[12]Para 2.1 of the Guidance gives some description of the particular role of a court-appointed QLR:
‘Where the court decides to make an appointment, it is important for the qualified legal representative to remember that: • they are not a representative of the court which appoints them but they are accountable to the court; • they are appointed to cross-examine in the interests of the party (section 31W(6) of the 1984 Act …); and • they are not responsible to the party (section 31W(7) of the 1984 Act …). As qualified legal representatives are not appointed to act for the prohibited party in the way that ordinary legal advocates do, they do not have the traditional ‘lawyer-client’ relationship with the prohibited party and therefore are not responsible to the prohibited party. Although they will advance the interests of the prohibited party’ during the cross-examination, the qualified legal representative must not attempt to present the prohibited party’s entire case and should not take instructions from the prohibited party in the manner that a party’s own lawyer ordinarily would. However, the qualified legal representative is expected, in most cases, to meet with the prohibited party to elicit relevant information that will form the basis of the cross-examination and inform the drafting of the position statement.’
[13]Para 2.3.2 of the Guidance refers to conflict of interest:
‘It is important that the court-appointed qualified legal representative does not have a conflict of interest in the case. Should there be a conflict of interest, the qualified legal representative must inform the court immediately that they are unable to accept the appointment.’
[14]Para 3.3 of the Guidance is important as it delineates some of the limits on the court-appointed QLR’s role:
‘The court will make clear to the prohibited party that the qualified legal representative is not their lawyer and that they are appointed by the court only to cross-examine a certain witness or certain witnesses. The qualified legal representative must also clearly communicate the limited nature of their role and their relationship with the prohibited party. They must make clear that they do not have a contractual relationship with the prohibited party. Additionally, the qualified legal representative must make clear that they cannot give advice or represent the prohibited party throughout the case but are appointed by the court to carry out a very limited role. The qualified legal representative cannot help with preparing documentation or assist in complying with directions. The court-appointed qualified legal representative will need to explain to the prohibited party that they cannot promise the confidentiality that usually attaches to lawyer-client relationships (legal professional privilege) and that there are obligations in family and civil proceedings to disclose material that is unhelpful to the prohibited party’s case.’
The mother’s application to terminate the QLR’s appointment[15]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.[16]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.[17]Mr De Lane Lea made the following core submissions: i) The role of a court-appointed QLR is one that is independent of the party for whom the QLR is appointed. As Mr Fidler is the father’s criminal solicitor, they have a lawyer-client contractual relationship, and Mr Filder is not, therefore, capable of acting in an independent capacity in the Family proceedings; ii) The mother’s knowledge of Mr Fidler’s role in the pending criminal process, where she will face cross-examination as the key prosecution witness, has 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 in the appointment of the father’s criminal solicitor as his QLR; iii) A court-appointed QLR has a limited role under the statutory provisions. For example, a QLR should not take instructions from the represented party. It is not possible for a lawyer, who is also the instructed solicitor in parallel criminal proceedings, to undertake such a limited role in the Family Court; iv) Whilst no strict issues of conflict of interest apply as between Mr Fidler and the mother, there are issues, or potential issues relating to the different disclosure regimes as between the family process and the criminal process. In short, Mr Fidler will be party to all of the disclosed material related to the criminal charges, whereas the mother and her lawyers do not have sight of that material, none of which has been disclosed into the Family proceedings; v) Termination of Mr Fidler’s appointment as QLR would not interfere with the father’s rights to a fair trial as an alternative court-appointed QLR could be found to replace him.[18]In summarising his submissions at the oral hearing, Mr De Lane Lea stressed: a) The overriding objective and the need to promote fairness and justice; b) The fact that the mother was a vulnerable party; c) The statutory scheme aims to enhance the quality of the evidence of a potential victim of domestic abuse and to minimise the level of additional distress that the process of giving evidence may generate; d) The need to meet the ECHR, Art 6 and Art 8 requirements of both parties. The father’s opposition[19]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.[20]Mr Fidler made a number of specific submissions in writing and orally: a) Any point about non-disclosure of documents from the criminal process can be met by an order for disclosure into the Family proceedings and this, therefore, is not a point that has any weight; b) If the father instructed his criminal solicitor directly as either QLR or solicitor in the Family case, there could be no objection; c) Irrespective of who the QLR is, the father, himself, knows of the material disclosed in the criminal proceedings and could inform any QLR about it and instruct them to ask questions based upon it; d) The father could not rely on any material from the Family proceedings in the criminal court without an application being made to do so; e) The argument that, because the QLR is court-appointed the circumstances are different is not accepted. In any event, if a new QLR is appointed, costs would have been wasted and additional costs would be incurred; f) Judges in the Family Court are well experienced in controlling proceedings and can be relied upon to control the QLR in circumstance such as this.[21]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. Submissions from the AQLR and ALC[22]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.[23]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.[24]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.” (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.[25]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.[26]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.”
Discussion and conclusion[27]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.[28]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.[29]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.[30]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’.[31]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.[32]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.[33]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.[34]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].[35]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:(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. In any given case other factors may also be in play.[36]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.[37]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. Post-script[38]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.