A solicitor who was appointed by the court as a qualified legal representative in family court proceedings has been discharged of his appointment after he was also instructed to represent the father in the case in separate criminal proceedings.
In K v P (criminal solicitor as court-appointed QLR), a solicitor, named in the judgment as Mr Fidler, was appointed by the court as a qualified legal representative to cross-examine the mother on behalf of the father, who is a litigant in person in family proceedings.
In separate proceedings the father was charged with criminal offences relating to domestic abuse in which the mother is the principal prosecution witness. The mother applied to the court for an order discharging Fidler’s appointment as QLR.
Family division head Sir Andrew MacFarlane noted 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’.
The judgment said 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’ as it would be ‘disproportionate and unnecessary in circumstances where it is clearly permissible’.
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However, Fidler’s appointment as QLR and the father’s representative in criminal proceedings ‘may have the effect of increasing the witness's vulnerability, inhibiting their ability to give evidence or diminishing its quality, then the aim of the legislative scheme is likely to be thwarted’.
Terminating Fidler’s appointment as QLR, the judge said: ‘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 [in the Matrimonial and Family Proceedings Act 1984] and PD 3AB [of the Family Procedure Rules 2010], which is to enhance the quality of the evidence of a vulnerable witness and to reduce the potential for additional distress.' In the current case, he said, he was satisfied that the solicitor's appointment as QLR should be discharged.
‘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.’
